1 wp-774-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 774 OF 2009 Shri. Lalit Singh ..Petitioner Vs. M/s. Nagarjuna Fertilizers & Chemicals Ltd.and Anr. ..Respondents .... Mr.Kirit M.Syontri Adv. for Petitioner Mr.J.P.Cama Senior Counsel i/b Smt. Anjali P.Purav for Respondent No.1 Ms.Aparna Wadkar Adv. for Respondent No.2 .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : SEPTEMBER 23, 2009 P.C.: 1. Heard the learned counsel for the Petitioner and the learned counsel for the Respondent No.1. 2. The case of the Petitioner is that he was working as an Office Assistant in the Respondent-company since 1.5.1991. On 1.1.2004 his services came to be terminated without following due process of law. He raised a dispute. Ultimately a Reference (IDA) No.97 of 2006 came to be made to the 6th Labour Court, Mumbai. The Reference came to be answered partly in the affirmative. Respondent-company was directed 2 wp-774-09 to reinstate the Petitioner in employment and to pay back wages to him to the extent of 50% from the date of his termination till the date of his reinstatement in employment. The Petitioner being aggrieved by the fact that only 50% back wages was granted and not full back wages were granted, has preferred this writ petition. 3. As far as back wages are concerned, it is seen that Petitioner in his Statement of Claim has not made any averments that he tried to seek employment elsewhere and he was unable to obtain any employment, hence, he remained unemployed. Despite repeated queries, the learned counsel for the Petitioner was not able to point out any averments made by the Petitioner on this aspect before the Labour Court. It is well settled that back wages cannot be granted for the mere asking. If a person seeks back wages, the initial burden is on him to prove that in the intervening period, he was not gainfully employed and after he produces material in that regard, the employer can bring on record material to rebut his claim. In this connection, useful reference may be made to the decision of the Supreme Court in Kendriya Vidyalaya Sanghathan Vs. S.C. Sharma (SC) 2005 (104) FLR 863. In the said case, the respondent had neither pleaded nor placed any material in that regard, hence, it was held that the person was not entitled to back wages. 3 wp-774-09 4. The law in relation to back wages has undergone a sea-change. In U.P. State Brassware Corp. Ltd. Vs. Uday Narain Pandey, 2006 I CLR 39 S.C., it is observed that “the person is not entitled to get something only because it would be lawful to do so ”. It is further observed that, “although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but, now with the passage of time, a pragmatic view of the matter is being taken by the Court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively ”. 5. In the case of Haryana Urban Development Authority Vs. Om Pal, 2007 II CLR 856 S.C., it is stated that it is now also well settled that the relief of reinstatement with full back wages should not be granted “automatically ” only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors ”. 6. In the present case, it is seen that there is no material on record to show that the complainant had made efforts to obtain employment, however, he was not successful in doing so and therefore, he remained unemployed. Despite this fact, the Labour Court has granted 50% back 4 wp-774-09 wages. 7. In view of the above, no case is made out to grant full back wages. Writ petition is dismissed. [ SMT.V.K.TAHILRAMANI,J.]