A petitioner must prove non-employment post-retrenchment to claim back wages after reinstatement.

J U D G M E N T

This writ petition has been filed challenging the award dated 20-06-

2022 in ID No. 9/2022 on the file of the Labour Court, Kozhikode, to the extent that it denies back wages to the petitioner while finding that the petitioner's retrenchment was illegal and directing his reinstatement.

2. The learned counsel for the petitioner submits that there was no just cause or reason for the Labour Court to deny back wages to the petitioner. It is submitted that there were other workmen similarly situated like the petitioner working in the same establishment and in respect of whom the very same Labour Court had directed reinstatement with 50% back wages. Reference is made in this regard to the award dated 31-08-2022 in ID No.28/2022 on the file of the Labour Court, Kozhikode. It is submitted that a different yardstick cannot be adopted in the matter of granting back wages, and the petitioner is entitled to back wages for the period during which he was illegally kept out of service.

3. The learned counsel appearing for the party respondents would submit that the Labour Court has denied back wages to the petitioner for the reasons mentioned in paragraph 15 of Ext. P1 award. It is submitted that it is settled law that while it is the normal rule that an award which directs reinstatement will also direct the payment of back wages, where there is failure on the part of the employee to plead or make a statement before the Court of first instance that he/she was not gainfully employed or was employed for lesser wages during the period when he/she was denied employment, the Labour Court will not normally grant back wages. It is submitted that the decision of the Supreme Court inDeepali Gundu Survase v. Kranti Junior Adhyapak Mahavidyalaya and others , (2013) 10 SCC 324, is the authority for this proposition and that the Labour Court has, while denying back wages to the petitioner, rightly relied on the said judgment. It is submitted that this principle has not been diluted and has been reiterated by the Supreme Court in several decisions, including in Singla M.L. v. Punjab National Bank and another , (2018) 18 SCC 21 andRajasthan State Road Transport Corporation v. Phool Chand (Dead) through LRS, (2018) 18 SCC 299. It is submitted that in the facts of the present case, there were no pleadings in the claim statement filed by the petitioner or any other material placed before the Labour Court to establish that the petitioner was not gainfully employed during the period he was kept out of service. It is submitted that in such circumstances, the petitioner is not entitled to any relief in this Writ Petition.

4. Having heard the learned counsel for the petitioner and the learned counsel appearing for respondents, I am of the view that there is considerable merit in the contention taken by the learned counsel for the party respondents that the petitioner is not entitled to the award of back wages. In Deepali Gundu Survase (supra), the Supreme Court held as follows:

“33. The propositions which can be culled out from the aforementioned judgments are:

i) xxx xxx xxx ii) xxx xxx xxx iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who mak