1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5272 OF 2008 M/s. Rajesh Sewing Machine Company ..Petitioner. Vs. Pradip Mohan Thakur ..Respondent. .... Mr. S.R. Nargolkar for the Petitioner. None for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 17th November, 2008. P.C. : 1. The Respondent was employed since 1984 with the Petitioner as a salesman. The Respondent raised an industrial dispute that his services were terminated on 22nd February, 2005 unlawfully without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947. According to the workman a letter of demand was addressed on 16th April, 2005 which was not responded to by the Petitioner. The Petitioner failed to appear in the reference though it was served. The reference proceeded ex parte. The Labour Court noted that the evidence of the workman was not as a 2 result challenged by the employer despite opportunity. The termination of the services of the workman was held to be illegal and an order of reinstatement with full backwages with effect from 21st February, 2005 was passed. 2. On 21st July, 2008 when these proceedings were listed before the Learned Single Judge a statement was made on behalf of the Petitioner that the Petitioner had made all attempts to reinstate the workman but that he was not joining the duty. It was further stated that the Petitioner was willing to allow the workman to join duty the moment he reports for work. The order for the payment of backwages was challenged. Notice was accordingly directed to be issued to the workman. The office report is that the workman has been duly served. 3. On behalf of the Petitioner it has been submitted that as a matter of fact the workman was never terminated from service and that the Petitioner is ready and willing to take back the workman on duty. The order of the Labour Court insofar as it grants backwages 3 has been challenged and it has been submitted that neither in the statement of claim nor in the evidence which was adduced on behalf of the workman was there even a statement that the workman had not been gainfully employed or that he had been unable to obtain work despite efforts. Learned Counsel submitted that since the employer has always been ready to allow the workman to report for duty, no order for backwages could have been passed. 4. The statement of claim dated 17th February, 2006 filed by the workman is annexed at Exhibit A to the Petition while the affidavit in lieu of examination-in-chief dated 18th January, 2007 is annexed at Exhibit B. Neither the statement of claim nor the affidavit in lieu of examination-in-chief contains any reference whatsoever to the workman being gainfully employed during the period when he was allegedly terminated. It is now a settled principle of law that the burden lies upon the workman to establish on the basis of cogent evidence that he was not gainfully employed after his termination and that he had made all due and proper efforts to obtain alternate employment. There is therefore merit in the submission that the 4 Labour Court was manifestly in error in granting full backwages. However, in my view, the ends of justice would warrant that an opportunity should be given to the workman to amend the statement of claim and to lead evidence on the question of backwages. This request was not opposed by the employer, but it has been submitted that the employer may be permitted to file a written statement to controvert such of the averments that have been made by the workman in that regard. 5. The Petition is accordingly disposed of with the following directions : i) The statement made on behalf of the Petitioner to the effect that the Petitioner would allow the Respondent to report for work and to pay him his full wages in accordance with law is accepted; ii) The proceedings in Reference(IDA) 371 of 2005 shall stand restored to the file of the Labour Court. The Petitioner is permitted to file his written statement before the Labour Court within a period of four weeks from today; 5 iii) The Labour Court shall adjudicate upon the reference afresh after furnishing to the parties an opportunity of being heard after leading such evidence as they may desire in the proceedings. iv) In order to facilitate the implementation of the aforesaid directions, the award of the Labour Court dated 21st July, 2007 is quashed and set aside. There shall no no order as to costs. *****