1 2-wp-8880-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8880 OF 2010 Brihanmumbai Municipal Corpn., & Others .. Petitioners. V/s. Tulsabai N. Jadhav .. Respondent. Mr. S.S.Pakale with Mr. R.A.Malandkar, for Petitioners. Mrs. Neeta Karnik for the Respondent. CORAM : K.K.TATED, J. DATE : 6th APRIL, 2011. P.C.: 1 Heard learned counsel for the parties. 2 By this Petition under articles 226 and 227 of Constitution of India, the Petitioners are challenging the concurrent findings of the the Lower Courts. 3 The learned counsel appearing on behalf of Petitioner across the bar tenders draft amendment. Same is allowed. Leave to amend granted. Amendment to be carried out within two weeks from today. 2 2-wp-8880-10.sxw 4 The Respondent-Original Complainant filed complaint (ULP)No. 100 of 2006 in the Labour Court at Bombay against her illegal termination. The Labour Court by judgment and order dated 15th March, 2007 allowed the said complaint, directing Petitioner to reinstate Respondent along with continuity of service with effect from 31st May, 2001 till her age of superannuation and directed to pay 25% of back wages. 5 Being aggrieved by the said order, the Petitioner filed Revision Application (ULP)No.100 of 2007 before the President, Industrial Court. The Industrial Court by the judgment and order dated 3rd April, 2007 dismissed the said revision application. 6 The learned counsel appearing on behalf of Petitioner submits that by this Petition under articles 226 and 227 of Constitution of India, they are challenging the orders of both the Lower Courts only to the extent of granting 25% of back wages. The learned counsel appearing on behalf of Petitioner submits that for want of pleadings, Respondent is not entitled for back wages. He submits that Respondent neither in her complaint nor in her affidavit pleaded that she was unemployed till the order passed by the Industrial Court. 3 2-wp-8880-10.sxw 7 The learned counsel appearing on behalf of Respondent states that the Petitioner has not annexed Respondents’affidavit dated 10th January, 2007 filed before the Labour Court. In the said affidavit, Respondent specifically stated in para 8 that from the date of termination, she has lost her job. Para 8 of the said affidavit reads as under:- “Para – 8- I say that after my termination of services, I could not get any job elsewhere due to which myself and my family are facing economic death and are in bad financial conditions and so I am badly in need of my service and I am till today unemployed.” On the basis of this affidavit, learned counsel appearing on behalf of Respondent submits that there was specific pleadings before both the Courts and, therefore, the Labour Court , after considering all the facts, granted only 25% of back wages. 8 The learned counsel appearing on behalf of Petitioner relies upon the judgment in the matter of Kendriya Vidyalaya Sangathan and another v/s. S.C.Sharma, reported in (2005) (104) FLR 863. Para 15 of that judgment reads as under:- “Para 15 - Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has 4 2-wp-8880-10.sxw to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.” 9 There are specific pleadings in the complaint filed by the Respondent as well as in her affidavit dated 10th January, 2007, about her unemployment during pendency of the litigation. Therefore, I do not find any substance /reason to interfere with the concurrent findings of both the Courts under articles 226 and 227 of Constitution of India. Hence, Writ Petition is dismissed with no order as to costs. (K.K.TATED, J.)