HONOURABLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT APPEAL No.2583 of 2005 and WAMP.No.1316 of 2008 ORDER: (per Honourable Sri Justice B.Prakash Rao) The appellant is the second respondent in the Writ Petition filed by the second respondent-Management, wherein the Management assailed the correctness of the award passed by the Industrial Tribunal, Hyderabad in I.D.No.35 of 1997, dated 07.01.1999, allowing the reference at the instance of the appellant setting aside his termination and directing his reinstatement with continuity of service and other attendant benefits, was dismissed denying back wages. Hence the appeal. Facts, in brief, are that the appellant was appointed as a clerk with the second respondent-Management on 14.07.1989 and, subsequently, his services were orally terminated on 26.03.1995. On a dispute being raised, the matter was referred by the Central Government for adjudication by the Tribunal in I.D.No. 35 of 1997. Both the appellant and the Management produced the oral and documentary evidence. The Tribunal, after considering the evidence on record, passed an award holding the termination of the services of the appellant as illegal and not justified and directed reinstatement with continuity of service and attendant benefits, to which he was entitled to. Aggrieved, the Management filed W.P.No.16384 of 1998 raising several grounds. The learned Single Judge, having considered the submissions on either side, dismissed the Writ Petition. In so far as back wages are concerned, the learned Single Judge had clarified that the appellant was not entitled to back wages for the period he was out of service. Against the said order, the appellant filed this appeal. Learned Counsel for the appellant submits that when there is no material evidence available on record to show that the appellant was gainfully employed, that once the order of termination is set at naught, he would be entitled to the relief of back wages and denial thereof by the Tribunal as well as by the learned Single Judge is not justified. Learned counsel appearing on behalf of the Management submits that since the specific plea raised by the Management that the appellant was working while he was out of service remains unrebutted, the appellant is not entitled to seek back wages. On the appraisal of the contentions urged on both sides and on a perusal of the material, the point that arises for consideration is whether the appellant is entitled to back wages. It would be relevant to take note of the findings of the Industrial Tribunal in its award with regard to the plea raised by the Management of the appellant being engaged with Sri Sai Clay Byrates Company at Mangampet, the appellant had given plausible explanation as to how his name happened to be in the B-Register of the said Company and, therefore, it cannot be said that he was gainfully employed in that Company. The said finding in the award has remained unassailed. Inspite of categorical reasons in the award of the Tribunal, the learned Single Judge while denying back wages had not given reasons therefor. The Management had not produced any evidence that the appellant was gainfully employed. It is well established that whenever the orders of termination are set at naught, an employee/worker would be entitled to back wages unless and until it is shown that he has been gainfully employed elsewhere. The Supreme Court in Hindustan Tin Works v. Its Employees[1] held that awarding of full back wages was the normal rule and the party objecting to it must establish the circumstances necessitating departure. In view of the decision of the Supreme Court, the appellant is entitled to back wages. The order of the learned Single Judge, to the extent the appellant was denied back wages, is set aside. The appellant filed WAMP.No.1316 of 2008, wherein he assailed the order of transfer dated 12.09.2005, subsequent to his reinstatement in terms of the award in I.D.No. 35 of 1997, posting him at Ajamir in Rajasthan. Having regard to the fact that it constitutes a totally different action, the petitioner can as well take recourse to the legal remedies available to him in law. We are not inclined to interfere with the order of transfer dated 12.09.2005. Accordingly, the Writ Appeal is allowed and WAMP.No.1316 of 2008 is dismissed. No order as to costs. B.PRAKASH RAO,J G. BHAVANI PRASAD,J Date:11.08.2010 usd [1] AIR 1979 SC 75