The burden of proof that the workman remained unemployed is on the workman, and the employer is obligated to disprove the workman's contention of non-employment.

N. Paul Vasanthakumar, J.

1. This writ appeal is filed against the order made in W.P.No.8072 of 1995 dated 10. 2001, wherein the learned single Judge ordered backwages to the deceased writ petitioner from the date of dismissal till the date of actual reinstatement.

2. The deceased writ petitioner was initially employed as NMR in the appellant -Tamil Nadu Water Supply and Drainage Board and his services were regularised with effect from 1. 1983. He was placed under suspension on 30.8.1990 on the allegation that he produced a false certificate to prove his educational qualification. Subsequently he was dismissed from service with effect from 6. 1991. An industrial dispute was raised before the Labour Court in I.D.No.352 of 1992 and the Labour Court passed an award on 111. 1994 by setting aside the order of termination and ordering reinstatement, without backwages. As against the denial of backwages, the deceased petitioner filed W.P.No.8072 of 1995 and prayed for payment of backwages from the date of termination.

3. When the writ petition was pending, the original writ petitioner died and his legal heirs, namely respondents 1 to 3 were brought on record. The learned single Judge, taking note of the fact that the reinstatement order was not challenged by the appellant and having found that the discretion of the Labour Court having not been properly exercised by stating no cogent reason for refusing backwages, set aside the award of the Labour Court insofar as denial of backwages and allowed the writ petition with a direction to the appellant to pay backwages to the legal representatives of the workman. Aggrieved against the said order of the leanred single Judge, this writ appeal was filed.

4. During pendency of the writ appeal, on 28. 2003 this Court passed an interim order and directed the appellant to deposit the backwages in the Labour Court within a period of six weeks. In compliance with the said direction, the appellant deposited the amount of backwages.

5. Now the question to be decided is as to whether the deceased writ petitioner was entitled to get backwages during his non-employment period.

6. In the affidavit filed in support of the writ petition it is stated that the workman suffered without any means of livelihood from the date of his termination. There is no denial of the said fact in the counter affidavit filed by the appellant. In the counter affidavit the appellant narrated the facts leading to the order of dismissal. The question raised with regard to the payment of backwages was not answered in the counter affidavit at all. The Labour Court award insofar as reinstatement is concerned was accepted by the appellant by reinstating the deceased writ petitioner.

7. Taking note of the above undisputed facts which are the relevant considerations for the award of backwages while ordering reinstatement, the learned single Judge allowed the claim for the payment of backwages. The learned single Judge also found that the rejection of backwages by the Labour Court was on the ground that the appellant is a statutory corporation, a Government Undertaking, is not legal and valid.

8. The point for consideration in this writ appeal is as to whether the order of the learned single Judge is sustainable and the deceased writ petitioner was entitled to claim backwages.

9. It is well settled principle of law that once the order of termination is found to be illegal, discretion is vested with the Labour Court to grant or deny backwages, depending upon the fact as to whether the workman was gainfully employed during the period of termination. If it is proved that the workman was not employed gainfully during the said period, the Labour Court is bound to consider the question of payment of backwages. While considering the said claim of backwages, the Labour Court is also bound to consider, whether the workman has pleaded the same and the management disproved the same.

10. It is the specific case of the workman befo