( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 228 OF 2002 Jaibhavani Sahakari Sakhar Karkhana Ltd., Georai, Dist. Beed, through its Managing Director. PETITIONER VERSUS Vithal s/o Trymbakrao Chakkar, R/o Koler, Tq. Georai, Dist. Beed. RESPONDENT ..... Mr. N.B. Khandare, advocate for the petitioner. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th June, 2009] ORAL JUDGEMENT : 1. By this petition, the petitioner challenges judgement and order rendered by the Industrial Court, Aurangabad, in BIR Appeal No. 4/2000 and that of the Labour Court, Aurangabad, in application (BIR) No. 64/1991. 2. The facts are few. The respondent was employed with the petitioner. He was chargesheeted for certain ( 2 ) misconduct committed by him during the tenure of his employment. He was initially suspended. After due notice, the inquiry was commenced against him. During the domestic inquiry, the respondent initially appeared before the Inquiry Officer and sought time to file written submissions. However, thereafter, he did not participate in the inquiry. The learned Inquiry Officer concluded that the charges were duly proved against the respondent. By order dated 24­10­1991, the respondent was dismissed from service. 3. The respondent challenged his dismissal by filing an application (BIR) No. 64/1991 before the Labour Court. The Labour Court held in his favour and directed his reinstatement, alongwith full backwages and benefit of continuation of service. He was reinstated in service. The petitioner challenged the said order of the Labour Court before the Industrial Court by way of appeal (BIR Appeal No. 4/2000). The appeal came to be dismissed. Hence, this petition. 4. Mr. Khandare submits that while admitting the ( 3 ) petition, conditional order was rendered by this Court on application for stay and, therefore, the petitioner has deposited 50% of the amount payable towards the backwages. Mr. Khandare does not challenge the orders pertaining to reinstatement of the respondent. He also concedes that the 50% amount paid to the respondent may not be re­claimed by the petitioner. He disputes the impugned judgements and orders only to the extent of 50% of the backwages payable to the respondent. 5. At the outset, it is important to note that statement of the respondent was recorded by the learned Labour Judge during the proceedings. A copy of his statement is placed on record. The question of backwages cannot be isolatedly decided without considering the background facts and particularly, conduct of the employee. It is well settled that the burden of proof is on the employee to establish that he was not gainfully employed during the relevant period of his termination and the reinstatement. The learned Judge of the Labour Court vaguely observed that the respondent stated that he was not in gainful employment. I do not ( 4 ) find any such categorical statement of the respondent in the record. That apart, mere such vague statement of the employee is hardly of any significance. Secondly, the learned Judge of the Labour Court as well as the Judge of the Industrial Court did not consider past conduct of the respondent. 6. What transpires from the record is that the respondent did not appear before the Inquiry Officer, except on first occasion when he sought time to file written submissions. He, in fact, did not participate in the inquiry proceedings. It is on the strength of such fact situation that the inquiry report was rendered by the Inquiry Officer. The written statement of the petitioner before the Labour Court reveals that the respondent was previously served with chargesheet in respect of similar inquiries about his misconduct. It is stated that the respondent had tendered apology and, therefore, he was let­off, warnings. So, it is explicit that the respondent was in a habit of admitting the charges, giving apologies and putting forth temporal stance of low profile so as to gain sympathy. His such ( 5 ) strategic admissions, however, backfired when the adverse inquiry report was rendered in respect of his misconduct. These are tale­telling circumstances. The learned Judge of the Labour Court as well as the Industrial Court did not consider this conduct of the respondent while awarding the full backwages. There is hardly any satisfactory evidence to reach conclusion that the respondent was not gainfully employed during the relevant period. His bald version could not be accepted by the learned Judge of the Labour Court without proper corroboration, particularly, in view of lack of credibility to such a statement. The person who has tendency to change his version from time to time cannot be fully believed without appropriate corroboration. Under these circumstances, I am of the opinion that the impugned order to the extent of granting 50% of the backwages in favour of the respondent is unsustainable. 7. The learned counsel for the respondent would submit that the petition is untainable. At such a late stage, I find myself unable to subscribe to the ( 6 ) contention. The petition is filed through Managing Director of the Sugar Factory and is verified by the Labour Officer, who is employee of the petitioner – Sugar Factory. 8. It is further contended that the backwages could be granted under section 78 (1) (d) of the Bombay Industrial Relations Act, 1946. In this context, it may be mentioned that section 78 only deals with power of the Labour Court. There is no inherent right available with the employee to claim the full backwages unless the other conditions are satisfied. 9. Considering the foregoing reasons, the petition is allowed. The impugned judgements and orders to the extent of grant of 50% of the backwages to the respondent are hereby quashed. The Rule is made partly absolute accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/WP228­02