( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 516 OF 1993 The Depot Manager (A), M.S.R.T. Corporation, Degloor. PETITIONER VERSUS Sk. Mehboob s/o Sk. Kasim, at Mutnal Post Adampur, Tq. Biloli, District Nanded. RESPONDENTs ….. Mr. M.K. Goyanka, advocate for the petitioner. Mr. S.B. Talekar, advocate for the respondent. ….. [CORAM : V.R. KINGAONKAR, J.] [DATE : 5th July, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner – M.S.R.T.C. - challenges order rendered by learned Member, Industrial Court, Aurangabad in revision (ULP) No. 36/1989 and by learned Labour Judge, in complaint (ULP) No. 154/1984. By the impugned orders, the respondent was directed to be reinstated in service with continuity of service and backwages w.e.f. 13th August, 1984. ( 2 ) 2. The respondent was reinstated in service as a result of the concurrent judgements of both the Courts. There is no reason to interfere with the findings of both the Courts regarding unfair practice adopted by the petitioner – M.S.R.T.C. while terminating services of the respondent. The Labour Court noticed that the termination was by way of victimization. On going through the impugned judgements and after hearing learned counsel for the parties, I find it difficult to interfere with the concurrent findings as regards the unfairness of the M.S.R.T.C. while terminating the services of the respondent. Moreover, the respondent has been superannuated by passage of time after the reinstatement. 3. The petition was admitted only to the extent of relief of backwages and not for any other relief. 4. The short question, therefore, is whether the backwages could be granted to the extent of full amount. 5. It is important to note that the respondent did not adduce any evidence to show that he was not gainfully employed during the relevant period when he was out of service due to ( 3 ) the termination and till his reinstatement. The relief of backwages cannot be granted just at the drop of head. The Labour Court is required to consider whether the workman was gainfully employed during the relevant period or that there was total absence of any gainful employment. In the present case, neither party adduced evidence on this score. The Labour Court did not ascribe a single reason while granting full backwages. The learned Judge of the Labour Court only mentioned that the respondent was entitled for reinstatement with continuity of services and backwages as there was no evidence on record to prove that he had acquired any job and was getting any wages after the date of dismissal. Needless to say, the Labour Court assumed that burden of proof was on the employer i.e. M.S.R.T.C. Such negative burden could not have been placed on the petitioner. It is for the workman to establish that inspite of due diligence, no gainful employment could be obtained by him. No particular reason is assigned by Industrial Court too while dismissing the revision application. 6. Considering the foregoing fact situation and the tenor of reasons ascribed by the learned Judge of the Labour Court, I am of the opinion that the grievances ventilated by ( 4 ) the petitioner – M.S.R.T.C. Are not totally devoid of substance. It appears, however, that the respondent did not adduce any particular evidence about his gainful employment for want of a specific issue framed by the Labour Court in the context of such burden of proof. In the peculiar fact situation of the present case, it would be proper to allow the claim for backwages only to the extent of 50 per cent. The petitioner has already paid 50 per cent of the backwages during the intervening period. 7. In the result, the petition is partly allowed. The impugned orders are partly set aside only to the extent of 50 per cent of the backwages and remaining part thereof is maintained. The remaining amount of backwages shall be paid by the M.S.R.T.C. - petitioner to the respondent within period of six (6) weeks. The amount deposited in the Court shall be paid to the respondent without any delay, alongwith the accruals. The petition is accordingly disposed of. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp516-1993