1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 846 OF 2009 Shri Shriram Zanwaraji Tayade ..... Petitioner. V/s Hotel International .....Respondent. Mr. Amit B. Borkar for the petitioner. Mr. M.S. Topkar for the respondent. CORAM: V.M. KANADE, J. DATE : 8TH JULY, 2009 P.C:- 1. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent. 2. Petitioner is challenging the judgment and award passed by Labour Court. By the said judgment and order dated 19/3/2008, Labour Court was pleased to partly allow the dispute in favour of the petitioner herein and the respondent was directed to reinstate the petitioner herein on his earlier post 2 alongwith continuity in service. Labour Court, however, did not grant back-wages to the petitioner. The learned Counsel appearing on behalf of the petitioner submitted that the petitioner was appointed as a room boy in the respondent – hotel and on 5/11/1992, his services were terminated without following the provisions of section 25(f) of the Industrial Disputes Act, 1947. It is the case of the petitioner that during the period 17/2/1993 to 25/2/1993, the petitioner was not allowed to work. He, therefore, approached Labour Commissioner. The matter was referred to Labour Court. Labour Court came to the conclusion that services of the petitioner were illegally terminated without following the procedure under section 25(f) and directed the respondent to reinstate the petitioner. This award has not been challenged by the respondent. 3. The learned Counsel appearing for the respondent submits that the respondent is still willing to reinstate the petitioner herein. However, the petitioner is not interested in joining his duties with respondent. It is, however, submitted that Labour Court had erred in not granting back-wages atleast from the period from 1992 to 1997. The learned Counsel for the petitioner submitted that the petitioner had admitted in his cross- 3 examination that he was working elsewhere from 1997 to 2008. He submitted that, therefore, the Labour Court ought to have awarded back-wages atleast from 5/11/1992 to 1997. The learned Counsel for the petitioner submitted that since the Labour Court had come to the conclusion that termination of the petitioner’s services was illegal, the Labour Court ought to have awarded back-wages for the period from 1992 to 1997. 4. It is not possible to accept the submissions made by the learned Counsel appearing on behalf of the petitioner. The Labour Court has rightly observed that the petitioner had suppressed the fact that he was working from 1997 to 2008 and since he had not honestly disclosed the factum of gainful employment during this period, the Labour Court came to the conclusion that the petitioner is not entitled to get back-wages. It is a well settled position in law that after an order of reinstatement is passed, workman is not entitled to get back- wages as a matter of right. The employee – workman has to plead and lead evidence to show that he was not gainfully employed and only thereafter burden shifts on the employer to prove that he was gainfully employed. In the present case, the employer has produced sufficient evidence to show that the petitioner herein was employed from 1997 to 2008 and as a 4 result of which the workman had no other alternative but to admit this fact in his cross-examination. Taking into consideration these facts, therefore, in my view, Labour Court was justified in not awarding back-wages. 5. Under these circumstances, no case is made out by the petitioner for interfering with the order passed by Labour Court by exercising writ jurisdiction. Petition is dismissed. (V.M. KANADE, J)