LPA 151/09 in WP 1615/08 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.151/2009 IN WRIT PETITION NO.1615/2008 Ramdas s/o Baburao Shinde, age 60 yrs., occu.nil, r/o Vitthal Darshan, Shreyas Residency, Flat No.26, Survey No.207/3, Bhosari Alandi Road (Near Ramnagari), Pune – 411 039. ...Appellant.. (Org.petitioner) Versus Ashok Sahakari Sakhar Karkhana Ltd., through its Managing Director, Ashok Nagar, Post Karegaon Tq.Shrirampur Dist.Ahmednagar. ...Respondent... ..... Shri Pradip Shahane, Advocate for appellant. Shri V.N. Upadhye, Advocate for respondent. ..... CORAM: D.B. BHOSALE & R.M. BORDE, JJ. DATE: 25.01.2011 LPA 151/09 in WP 1615/08 - 2 - PER COURT : 1] Heard learned counsel for the parties. 2] This Letters Patent Appeal is directed against the order dated 8.7.2009 passed by the learned Single Judge dismissing Writ Petition No.1615/2008 filed by the appellant against the judgments and orders passed by the Labour Court and the Industrial Court dated 3.2.2006 and 23.10.2007 respectively. The Labour Court had allowed the Complaint (ULP) No.60/2000 and directed the respondent herein to reinstate the appellant – original complainant on his previous post with continuity of service, but without any back wages. The judgment of the Labour Court was carried in two revision applications, one by the appellant and the other by the respondent. The Industrial Court dismissed both the revision applications vide judgment and order dated 23.10.2007. The order of the Industrial Court was challenged by the appellant alone in the writ petition. The challenge in the revision filed by the appellant and thereafter in the writ petition, was to the denial of back wages. 3] Learned counsel for the appellant, at the outset, invited our attention to the judgment of the Supreme Court in J.K. Synthetics Ltd. V/s K.P. Agrawal & another (2007 I CLR, 670) and the judgment of this Court in Letters Patent Appeal No.4/2007 decided on 11.4.2008 in Taranjitsingh I. Bagga V/s Maharashtra State Road Transport Corporation, to submit that the order of the learned Single LPA 151/09 in WP 1615/08 - 3 - Judge, confirming the orders passed by the Courts below, is wrong and contrary to the law settled by these judgments. 4] We have perused both the judgments so also the impugned order along with the other material placed on record. The learned Single Judge, after considering the judgment of this Court in Taranjitsingh I. Bagga’s case, has observed thus: "The question of back wages depends on the circumstances of each case. Here is a case in which the petitioner did not specifically plead in his application before the Labour Court that he was a sufferer due to disengagement of work and was not able to earn livelihood, partly or fully. It is true that he vaguely stated in his examination in chief that he made attempts but could not secure employment. Still, however, such a vague statement can not be regarded as sufficient proof in the absence of any other corroborative material in this behalf. The petitioner was found partly guilty of a charge pertaining to gross negligence. Therefore, in the absence of total clean chit given to him by the Labour Court, the refusal of the relief pertaining to back wages need not be interfered with." (emphasis supplied) 5] In our opinion, the learned Single Judge has rightly dismissed the petition based on the observations made by this Court in Taranjitsingh’s case. The submission of learned counsel for the appellant, based on this judgment, in our opinion, is devoid of any merit. Insofar as the judgment in J.K. Synthetics Ltd. is concerned, in para 18 of the judgment, the Supreme Court has observed thus: “Coming back to back-wages, even if the Court finds it necessary to award back-wages, the question will be whether back-wages should be LPA 151/09 in WP 1615/08 - 4 - awarded fully or only partially (and if so, the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back-wages, in addition to the several factors mentioned in Rudhan Singh (supra) and Udal Narain Pandey (supra). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.” (emphasis supplied) 6] From bare perusal of the observations made by the Supreme Court, it is clear that the question of back wages depends upon the facts and circumstances of each case. The Supreme Court after quoting the judgments in General Manager, Haryana Roadways V/s Rudhan Singh (2005 II CLR, 1955 SC) and U.P. State Brassware Corpn. Ltd. V/s Udal Narain Pandey (2006 I CLR, 39 SC) has observed that it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. The Supreme Court further LPA 151/09 in WP 1615/08 - 5 - observed that while an employee can not be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. In the present case, the appellant did not plead that he was not gainfully employed. He, in his examination in chief, has simply stated that he made attempts, but could not secure employment. In view thereof, the learned Single Judge has rightly observed that such a vague statement can not be regarded as sufficient proof / assertion in the absence of any corroborative material / pleadings in this behalf. That apart, it is also clear from the observations made by the learned Single Judge in the order that denial of back wages is not only on that basis, but it was also on the ground that the appellant was found partly guilty of a charge pertaining to gross negligence. 7] In the circumstances, we find no merit in the Letters Patent Appeal. Hence, the appeal fails and dismissed as such. (R.M. BORDE, J.) (D.B. BHOSALE, J.) ndk/251117