JUDGMENT [ENTITY], J.
1. By this Writ Petition under [SECTION] of the [ACT], the petitioner employee challenges the part of the order of Industrial Court dated 9-9-1992, by which the learned Member, Industrial Court directed payment of only 50% backwages to him while ordering his reinstatement in service.
2. The facts are - services of petitioner were earlier terminated in the year 1977, and therefore, he filed [CASE NUMBER]. After summons in this complaint was served upon the employer, petitioner was taken back, and petitioner did not attend the Court and hence Labour Court on 10-7-1978 dismissed the complaint in default. In view of this dismissal, the respondent/employer again terminated his services orally by asking him not to report for duty on 28-9-1978. This oral termination was challenged by the petitioner by filing Complaint under [SECTION] of [ACT] and [ACT], bearing [CASE NUMBER], before the Labour Court. The Labour Court by its order dated 24-4-1991, dismissed the complaint observing that initial burden was upon the petitioner and he did not adduced any evidence. This order of the Labour Court was challenged by petitioner by filing Revision under [SECTION], vide [CASE NUMBER], before the Industrial Court. The [CASE NUMBER] decided on 30-3-2005. (Nagpur) Court delivered its order on 9-9-1992. It held that the oral termination of the petitioner constituted illegal retrenchment, and as such he was entitled to grant of reinstatement. However, while considering the question of grant of backwages, it found that as petitioner did not adduce any evidence to show that he was not gainfully employed during the period of unemployment, he is not entitled to full backwages. It therefore, granted him only 50% backwages to the petitioner is arbitrary and unsustainable.
3. I have heard learned Senior Counsel [ENTITY], with Advocate Mrs. [ENTITY] and Advocate [ENTITY] for petitioner and learned Assistant Government Pleader Mrs. [ENTITY], for respondents.
4. Learned Senior Counsel after stating the facts, contended that there is absolutely no justification given by the learned Member of Industrial Court, for denying 50% backwages to the petitioner. He invites attention of the Court to the ruling of the Hon'ble Apex Court in , [PRECEDENT], particularly para Nos. 9 and 16 thereof to contend that once there is non-compliance of [SECTION] of the [ACT], the employee is deemed to have been continued in service, and no formal order of reinstatement is also necessary. Therefore he contends that in view of this deeming fiction, the employee is also entitled to full backwages. He has also relied upon the judgment of the Single Judge of Punjab and Haryana High Court, reported in [PRECEDENT], [PRECEDENT], to state that normal rule in such circumstance is grant of full backwages and the deviation is possible only if it is shown that the employee was gainfully employed during this period. It is further contended that burden in this respect is upon the employer. Reliance is also placed upon the judgment reported at [PRECEDENT]., to contend that when full backwages were legally due to the petitioner, the learned Member of Industrial Court could not have denied the same to the petitioner. The learned Senior Counsel, has also placed reliance upon the Division Bench judgment of Rajasthan High Court reported at [PRECEDENT], [PRECEDENT], to further show that burden is always upon employer to show that the employee was gainfully employed during the period of un-employment. He has also relied upon two judgments of this Court, reported at [PRECEDENT], [PRECEDENT], [PRECEDENT], respectively, wherein similar view has been taken.
5. The learned Senior Counsel states that the employee as also the employer has not led any evidence before the Labour Court, but in the Written Statement the employer has not taken any plea about denial of backwages or has not objected to grant of backwages to the employee, in any manner. He further contends that even before Industrial Court there was no such plea raised and no arguments were advanced questioning entitlement of the petitioner to grant of full backwages. He therefore contends that the learned Member of the Industrial Court, has acted arbitrarily by restricting grant of backwages to 50% and there is absolutely no justification for denying the remaining 50% to him.
6. Learned A.G.P. on the other hand states that the learned Industrial Court in para No. 10 has given reasons for denying 50% backwages. She states that the petitioner did not prove that he was not gainfully employed during the period of his unemployment, and further the termination mentioned had taken place long back i.e. in the year 1978. She contends that in view of both these factors, the learned Member of Industrial Court found it fit to restrict the grant of backwages only to 50% and use of this discretion by the learned Member cannot be questioned in writ jurisdiction.
7. Paragraph Nos. 9 and 16 of the judgment of Hon'ble Apex Court at (supra), reveal that - where prerequisite for valid retrenchment as laid down in [SECTION] has not been complied with, retrenchment bringing about termination of service is ab-initio void. In paragraph No. 16, the Hon'ble Apex Court in view of the facts, held that in such circumstances, the employee were deemed to be in continuous service. It will thus be clear that where there is neither termination nor cessation of service and the declaration would follow that the workman concerned continued to be in service with all consequential benefits. The Apex Court in para No. 17 has also stated case has to be made out for departure from this normal procedure, and generally accepted approach of the Court in the field of social justice. The Punjab and Haryana High Court in [PRECEDENT], in para No. 3 has relied upon the judgment of the Hon'ble Apex Court in case between [PRECEDENT], and quoted from the said judgment that ordinarily workman whose service have been illegally terminated would be entitled to full backwages, except to the extent he was gainfully employed during the enforced idleness and that this is normal rule. It is further observed by the Hon'ble Apex Court, that grant of full backwages is normal rule and party objecting to it must establish the circumstances necessitating departure. In paragraph No. 4 the Punjab and Haryana High Court, has observed thus :
"4. From the perusal of the above, it becomes obvious that full backwages would be the normal rule and the party objecting to it must establish the circumstances necessitating a departure. A perusal of the award shows that no cogent reasons have been given for departing from the normal rule. Consequently, the award deserves to be modified as prayed.
8. In [PRECEDENT] (supra), in para No. 20 the Hon'ble Apex Court was considering the issue of reduction of backwages by Labour Court, and observed thereafter, that in any of the earlier judgment the Apex Court neither said that it is not an inevitable conclusion that every time a reinstatement is ordered, full backwages was the only consequence. The Apex Court further states that it never mean that even in cases where full backwages are legally due, the superior Courts are precluded from doing so merely because the Labour Court has on erroneous ground reduced such backwages. The Hon'ble Apex Court has considered the facts of the case before it and has found that the Labour Court accepted the general observations and reduced backwages payable to the employee. It found that the High Court was justified in coming to the conclusion that appellant before it was entitled to full backwages.
9. In the facts of the present case, the entire discussions as contained in paragraph No. 10 of impugned order. In paragraph No. 10, the learned member of Industrial Court has not considered any such evidence, as admittedly the employer did not point out any fact which disentitled the petitioner to grant of full backwages.
10. In [PRECEDENT] (supra), the Division Bench of the Rajasthan High Court in para No. 15, by placing reliance upon the judgment of the Hon'ble Apex Court in the case of [PRECEDENT] found that it was necessary for the employer to place on record material before the Labour Court to show that the workman was gainfully employed, while he was out of service. Thus again the Division Bench has found that burden was upon the employer. The two rulings of this Court on which reliance has been placed namely [PRECEDENT] (supra), takes the similar view, and accept the position that normal rule in such circumstances is grant of full backwages to the employee and departure therefrom is possible only at the instance of the employer and burden to plead and to lead evidence for that purpose lies upon the employer.
11. In view of the law, as stated above, it is apparent that in this case, the learned Member of the Industrial Court acted without jurisdiction in placing burden upon the employee, and the finding that employee did not adduce any evidence to show that he was not gainfully employed during the period of his unemployment, is therefore unsustainable and deserves to be quashed and set aside. It is to be noted that burden was upon the respondent and admittedly respondent have not adduced any evidence. The respondents did not even in their written statement challenged the entitlement of the petitioner to reinstatement with full backwages, and in such circumstances, the view taken by the learned Member of the Industrial Court is arbitrary and cannot be sustained. Thus the said part of the order of the Industrial Court is quashed and set aside. It is held that the petitioner is entitled to reinstatement with full backwages from the date of his termination i.e. 28-9-1978, till reinstatement. The order of the Industrial Court is accordingly modified. Rule Is made absolute in above terms. No costs.