THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.24137 of 2002 ORDER: This writ petition is filed under Article 226 of the Constitution seeking a writ of certiorari or any other writ, order or direction for quashing the award dated 03.12.2001 passed in I.D.No.143/2000 by the Industrial Tribunal-II, Hyderabad. The first petitioner herein is the management of Medchal Chemicals & Pharmaceuticals Private Limited and the second petitioner is its works manager. 2. The second respondent Sri K.Shankar herein was employed by the first petitioner in its organization as a helper and he was confirmed in service on 01.01.1998. On a charge that he was continuously absent from 05.12.1995, the first petitioner has terminated the service of the first respondent by its order dated 15.12.1995 on the ground that he overstayed his leave for more than 8 days without sanction. This order was challenged by the first respondent by raising an industrial dispute i.e. I.D.No.143/2000. His version is that he reported for duty on 20.12.1995 but he was not allowed to work on the ground that his services were terminated on 15.12.1995. 3. The tribunal in its impugned award firstly found that before issuing the termination order the petitioner-management did not hold any domestic enquiry as required by the Standing Orders and consequently the termination was bad. It then held that as the termination was bad the first respondent was entitled to full back wages and awarded the same also. 4. Sri S.Ravindranath, the learned counsel for the petitioner, argued that since the first respondent overstayed his leave without any sanction there was no requirement of issuing any notice to the second respondent and therefore the tribunal was in error in holding that a prior notice and enquiry were necessary. I am unable to agree with this contention. It is brought to my notice that as the petitioner has no standing orders of its own it is relying upon the model standing orders. Section 9(3) of the A.P. Model Standing Orders which is not in dispute is reproduced in the impugned award and it reads as follows. “If the workmen remains absent beyond the period of leave originally granted or subsequently extended, he shall loose his lein on his appointment unless he (a) returns within 8 days of the expiry of the leave; and (b) explains to the satisfaction of (employer or the officer specified in this behalf by the employer) his inability to return before the expiry of his leave. In case the workman looses lein on appointment, he shall be kept on the ‘badli’ list.” 5. A perusal of the above Section 9(3) shows that clause (b) thereof reads that workman cannot be denied his lien unless he is given opportunity to explain to the satisfaction of his employer his inability to return before the expiry of his leave. Thus the above standing order pre-supposes that an opportunity should be given to the workman to explain his absence and thus it follows that the workman cannot be given such an opportunity unless enquiry is held and this is easily discernable from the simple language employed therein. Thus the contention of the petitioner’s counsel that when the workman overstayed his leave no enquiry need be held cannot be accepted. This is the view taken by the Supreme Court in the decision given in M/s. Scooters India Ltd. v. M.Mohammad Yaqub[1] also. Even otherwise the above standing order speaks of loss of lien for the absence stipulated therein but does not say that such absence may be a ground for termination without enquiry. 6. The tribunal considered the matter and concluded that as no domestic enquiry was held the termination order is bad. For the aforesaid reasons I am of the opinion that the tribunal’s conclusion in this behalf cannot be disturbed. 7. That takes me to the question of awarding back wages. The tribunal awarded full back wages i.e. from 15.12.1995 which is the date of termination to 30.08.2001 which is the date of the award. Sri Ravindranath pointed out that the tribunal did not discuss at all as to whether the second respondent was gainfully employed or not during the relevant period and that the tribunal should have given a finding on this aspect and without giving such a finding which is an essential requirement the tribunal without any application of mind straightaway proceeded to grant full back wages and this is not correct. He also argued that award of back wages is not a rule and the tribunal has to consider the above aspect and in support of this contention he placed reliance upon two division bench decisions of this Court one given in Mohd. Shoukath Ali v. Industrial Tribunal-cum-Labour Court, Warangal[2] and the other given in Cotton Corporation of India Limited v. Presiding Officer, Labour Court, Guntur[3]. 8. The above two decisions lay down the proposition that even in the case where the termination is found to be illegal the tribunal or the labour court need not straightaway award full back wages and that it should consider about the gainful employment of the workman and it is also held in these decisions that the initial burden lies upon the workman to show that he is not gainfully employed as that would be within his personal knowledge as contemplated under Section 106 of the Evidence Act, 1872. 9. On the other hand, Sri V.Narasimha Goud, learned counsel for the second respondent, firstly pointed out that in this case the termination is ipso facto illegal as it was held without domestic enquiry and therefore the second respondent must be held entitled to full back wages. He also pointed out that the second respondent pleaded in his counter and also stated on oath in his evidence that he has not been gainfully employed and consequently the tribunal was right in awarding full back wages. He also placed reliance upon two Supreme Court decisions one given in J.K. Synthetics Ltd. v. K.P.Agrawal[4] and the other given in Harjinder Singh v. Punjab State Warehousing Corporation[5] and pointed out that going by the principles laid down therein and the plea taken by the second respondent in his claim petition and also in his evidence regarding his version that he has not been gainfully employed, the tribunal’s order granting full back wages cannot be disturbed. 10. With regard to the plea of the second respondent about his not being gainfully employed in his claim petition, Sri Ravindranath pointed out that in the counter of the petitioner that has been denied and further he also stated that in his evidence the second respondent stated that during the relevant period he attended agriculture along with his father and this itself shows that he has been gainfully employed. Sri Narasimha Goud pointed out that attending agriculture along with father does not amount to any gainful employment. 11. A perusal of the decisions cited by both counsel would show that granting of back wages is not automatic and consequential to a reinstatement order even though the termination order may be illegal. What all a tribunal should see in awarding back wages is whether the workman could not have been gainfully employed and for that purpose the initial burden lies upon himself to show that he was not gainfully employed and later on the burden shifts to the employer. In the present case it is true that the workman in his claim petition pleaded that he has not been gainfully employed but his evidence shows that he attended the agriculture along with his father but he chose not to speak about his income. It may also be noted that as on the date of his evidence the age of the second respondent is shown as 30 years and on the date of his termination which was in 1995 it follows that he must have been aged around 25 or 26 years. Having regard to the said age, and having regard to the fact that the second respondent himself in his evidence admitted that he attended agriculture along with his father it follows that he was earning something and he was not altogether without any earnings but he did not quantify his earnings. 12. Taking into account the overall circumstances obtaining from the evidence I am of the opinion that the ends of justice would be served if the petitioner is ordered to pay 50% of the back wages to the second respondent. Accordingly this writ petition is partly allowed and while maintaining the reinstatement order, the award is modified as indicated above. The petitioner shall pay the 50% of back wages to the second respondent within six weeks from the date of receipt of this order. No costs. _______________________ N. RAVI SHANKAR, J 12th August 2011 CVRK [1] AIR 2001 SC 227 [2] 2007 (6) ALT 432 (D.B.) [3] 2006 (5) ALT 318 (D.B.) [4] (2007) 2 SCC 433 [5] (2010) 3 SCC 192