ORDER :

1. Heard Mr. Pradip Modi, learned counsel for the petitioner and Mr. G.M. Misra, learned counsel appearing for the respondents.

2. In this writ application, the petitioner has prayed for quashing of that part of the award dated 13.05.2010 passed by the learned Presiding Officer, Central Government Industrial Tribunal no. 2, Dhanbad in Reference Case No. 40/2002 by which the workman concerned has been denied the benefit of back wages although he has been ordered to be reinstated in service with continuity of service during his absence from duty till his reinstatement.

3. The factual aspects of the case reveal that the petitioner was a permanent workman at Sijua Garage, Jamdoba Colliery of M/s. TISCO (respondent no. 1) where he was employed as a Truck Driver. During the course of his employment the petitioner was served with a charge-sheet on 08.01.2000 and he was directed to show cause with respect to the allegation of theft of diesel oil from the tanker of dumper bearing registration no. BR-17G 0327. Another charge-sheet was issued on the same day directing the petitioner to show cause about the same allegation of theft of 40 liters of diesel oil. An explanation to the charge-sheet was submitted by the petitioner on 14.01.2000 in which a prayer was made for supply of the complaint, report of preliminary enquiry, name of the witnesses and other documents concerning his case. A departmental proceeding was initiated and ultimately vide order dated 27/28.09.2000 the petitioner was dismissed from service. The petitioner raised an industrial dispute before the Assistant Labour Commissioner (C), Dhanbad against his dismissal from service and after the conciliation ended in a failure a failure report was submitted to the Central Government and thereafter vide notification dated 09.05.2002 the matter was referred for adjudication before the Central Government Industrial Tribunal No. 2 at Dhanbad and the schedule of the reference is as follows:

“Whether the action of the management of M/s. TISCO, Ltd. in dismissing Shri Indrajeet Singh, Truck Driver from the services of the company w.e.f. 30.09.2000 is justified? If not, to what relief the concerned workman is entitled?”

4. Vide award dated 13.05.2010 passed by the learned Presiding Officer, Central Government Industrial Tribunal No. 2 at Dhanbad it was held that the action of the management of M/s. TISCO Ltd. in dismissing the petitioner from the services of the company w.e.f. 30.09.2000 is not justified and consequently he was entitled to be reinstated in service from the date of his dismissal but without any back wages. It was further held that the petitioner shall be entitled to the continuity of service during his absence from duty till his reinstatement.

5. Being aggrieved by that part of the award dated 13.05.2010 by which the petitioner has been denied back wages the present writ application has been preferred.

6. It has been stated by Mr. Pradip Modi, learned counsel appearing for the petitioner that back wages has to be awarded as a matter of course. He submits that the order denying back wages is presumptive as it has been presumed by the learned Tribunal that since the petitioner is a Truck Driver and is a technical person therefore he must not have been sitting idle during the intervening period when he was out of service. It has been stated that the employer has failed to show that the petitioner was gainfully employed during the period he was out of service and the management has also not contradicted the prayer of the petitioner with respect to payment of full back wages. It has been submitted that once a prayer has been made by the petitioner for payment of back wages it was incumbent upon the learned Tribunal to have granted so and learned counsel has once again reiterated his contention that back wages has to be ordered as a matter of course. In support of his contention learned counsel for the petitioner has relied upon the judgment rendered in the case of Deepali G