The main legal point established in the judgment is the entitlement of workmen to backwages, burden of proof, and factors influencing the award of backwages.

S.J. Mukhopadhaya, J.

The present Writ Appeal has been preferred by the workmen of the first respondent/co-operative Bank as against the order of the learned single Judge, dated 24.03.1998, passed in Writ Petition No.5669 of 1989. By the said order, the learned Judge though upheld the award passed by the Labour Court to the extent that the workmen are entitled to be reinstated with continuity of service, however, set aside part of the award whereby the Labour Court directed the Bank to pay full backwages to the workmen.

2. The only question required to be determined in this Writ Appeal is as to whether the workmen/appellants are entitled for backwages.

3. As could be seen, pursuant to the reference made under Section 10(1)(c) of the Industrial Disputes Act, 1947, as per G.O. Ms. No.3011, Labour Department, dated 12th November, 1983, the Labour Court, Coimbatore, by Award dated 30th December, 1988, in I.D. No.262 of 1983, answered the issues in favour of the workmen. The domestic enquiry conducted was held to be illegal. Consequently, the order of dismissal was set aside and it was held that the workmen are entitled to be reinstated in service with continuity of service, full backwages and other benefits. As stated earlier, the learned Judge, while upholding the award of the Labour Court insofar as it relates to reinstatement, set aside part thereof, whereby, the Bank was directed to pay backwages to the workmen. It is pertinent to quote below the observation made by the learned single Judge,

"Now I agree with the finding of the Presiding Officer, Labour Court, Coimbatore, in I.D. No.262 of 1983 and I am of the clear view that the order passed by the said officer is perfectly valid under law. The Presiding Officer, Labour Court, Coimbatore, directed the Management-Petitioner to reinstate the respondents 2 to 4 with continuity of service full backwages and other benefits. Having gone through the entire contents of the order passed by the Presiding Officer, Labour Court, I have to examine as to whether the rule of law laid down by the apex Court with regard to payment of backwages as incorporated or not. The rule of law to get backwages is that the respondents 2 to 4 should not be gainfully employed elsewhere during the period in question, that is from the date of dismissal till the date of reinstatement. On that aspect, there is no material, before the Presiding Officer, Labour Court, Coimbatore, to the extent that the respondents 2 to 4 are gainfully employed elsewhere. It is not the case of the respondents 2 to 4 that they are not gainfully employed elsewhere and that is not made out. When that is not made out and invoking Article 226 of the Constitution of India with regard to the principles of backwages, I am of the clear view that the respondents 2 to 4 are not entitled to get any backwages, but at the same time, they are entitled to get continuity of service. "

4. Learned counsel appearing on behalf of the appellants/workmen referred to the claim statement that was made before the Labour Court, Coimbatore. The following averment in the claim statement is relevant to be noted here,

"45. ........ The petitioners are without employment from 29.09.1980 onwards and they have got large family and the petitioners are the only bread winners in their family, and the petitioners have put into large years of continuous unblemished service. "

It is seen that the Management, in the counter filed before the Labour Court, has not disputed the aforesaid stand taken by the workmen. Even before the learned single Judge, in the counter filed, the workmen took similar plea, which reads as follows:-

"11. It is submitted that the respondents are without employment right from the date of suspension i.e. 19. 1980. Even in spite of the Labour Court award, the respondents are not reinstated. The backwages for the 2nd respondents comes to approximately Rs.2,15,000/- from 29. 1980 to 38. 1989. The backwages for the 3rd Respondent comes