1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No. 17/2011 in W.P.No.28/2010 Sk. Usman Sk. Mehboob, vs. Range Forest Officer, Alegaon, District Akola and another. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. Mr. R.J.Shinde, Advocate for the appellant. CORAM : S.A.BOBDE & MRS. V.K.TAHILRAMANI,JJ DATE OF RESERVING ORDER : 19.01.2011 DATE OF PRONOUNCEMENT : 09.02.2011 Heard the learned counsel for the appellant- original complainant. 2. The case of the appellant is that he was appointed as a watchman in the Forest Department since 24.10.1992 till 31.8.1994. He came to be terminated in the year 1994 by notice dated 31.8.1994. Being aggrieved by the termination, he filed a complaint before the Labour Court at Akola under Section 28(1) read with Schedule IV, Item No.1 of the M.R.T.U. & P.U.L.P. Act, 1971 and prayed for reinstatement with full back wages and continuity of service. The Labour Court allowed the complaint and directed reinstatement with full back wages and continuity of service. This order 2` was challenged by the respondents before the Industrial Court. By order dated 25.3.2009, the Industrial Court rejected the revision. Being aggrieved thereby the respondent Range Forest Officer, Alegaon preferred Writ Petition No. 28/2010. The learned Single Judge partly allowed the petition. The learned Single Judge held that the appellant was entitled to reinstatement with continuity but the directions granting back wages came to be set aside. The appellant being aggrieved by the fact that the order granting back wages was set aside, has preferred this appeal. Thus, the appeal is only limited to the issue of back wages. 3. The learned counsel for the appellant contended that the learned Single Judge committed an error in not allowing back wages. In relation to the back wages, the Supreme Court in Kendriya Vidyalaya Sangathan vs. S.C.Sharma (S.C.), 2005 (104) FLR 863; (2005) 2 SCC 363 observed that when a person seeks back wages, the initial burden is on him to prove that during the intervening period, he was not gainfully employed. Only when he succeeds in doing so, back wages can be granted to him. It was further observed that as the employee had neither pleaded nor placed any material on record in that regard, the High Court's order granting back wages came to be set aside. It is to be noted that in the complaint filed by the appellant 3` before the Labour Court there is no averment at all on this aspect. Moreover, his evidence is also totally silent on this point. Thus, the appellant has failed to plead or show that in the intervening period, he was not gainfully employed. 4. The learned counsel for the appellant submitted that once the person is reinstated, the order of back wages would automatically follow. In U.P. State Brassware Corp. Ltd. Vs. Uday Narain Pandey, (2006) 1 SCC, 479: 2006 I CLR 39 SC, it is observed that “although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/ or for a period that was spent unproductively.” 5. In view of the above, the learned Single Judge while setting aside order granting back wages was right in observing that the burden was upon the workman/ complainant to lead positive evidence to show that they could not secure alternate employment and were without any source of income and there is no such exercise on the part of the workman. 4` 6. The learned counsel for the appellant placed reliance on a decision of the Supreme Court in the case of Harjinder Singh vs. Punjab State Warehousing Corporation, reported in 2010(1)SCALE, 613. As far as this decision is concerned, the facts therein are not similar to the facts in the present case and hence, in our view, the said decision cannot help the appellant in any manner. Moreover, on careful perusal of the said decision, we find that it does not lay down a law to the effect that the right to claim back wages must necessarily follow the order directing reinstatement. 7. In view of above facts, the order passed by the learned Single Judge does not call for any interference. Appeal is dismissed. JUDGE JUDGE patle 5`