1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. LETTERS PATENT APPEAL NO.10 OF 2008. (MADHUKAR M. UGHADE Vs M.S. ROAD TRANSPORT CORPN. ) _____________________________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders ______________________________________________________________________________________________ Shri A.H. Jamal, Advocate for Appellant. Shri V.G.Wankhede, Advocate for Respondent No.1. CORAM : A.M.KHANWILKAR & R.C.CHAVAN, JJ. DATED : APRIL 25, 2008. 1. Heard learned counsel for the parties. 2. Perused the relevant pleadings and documents on record, including the oral evidence adduced by the parties. As short question is involved, we proceed to hear this appeal for final disposal forthwith, by consent of the parties. 3. The present appeal takes exception to the judgment and order passed by the learned single Judge, dated 10th September, 2007, in Writ Petition No.1591 of 2007, whereby the writ petition preferred by the appellant has been summarily dismissed on the reasoning that it was directed against the 2 concurrent findings of fact and more particularly because the appellant had failed to lead any evidence to the effect that he was unemployed during the relevant period, which was the reason to deny the relief of back wages to the appellant. 4. The short question that needs to be addressed in the present appeal is whether the view taken by the Courts below on the issue of back wages can be sustained on facts and in law. After having perused the pleadings and evidence on record, we have no hesitation in taking a view that the approach of the Courts below has been manifestly wrong. What has been glossed over by the Courts below is that there is specific pleading to the effect that the appellant was unemployed during the relevant period. The contents of para 14-D of the complaint, inserted by way of amendment, remained unrebutted. In that sense no issue arose for consideration regarding back wages. The respondents have failed to deny the said assertion of the appellant, that he was still unemployed and he could not get any employment. Indeed, the appellant, although entered the witness box, has not deposed about that 3 fact in the evidence. However, the question of appellant adducing evidence to that effect would have arisen only if the respondents were to refute the claim of the appellant that he was unemployed. The respondents having admitted the same in their pleadings itself, no proof was required to be adduced by the appellant. 5. In this view of the matter, we have no hesitation in taking a view that the appellant ought to succeed on the relief of back wages. The question is, to what extent back wages should be awarded. That aspect, in the first place, ought to be considered by the trial Court itself. One option before us, was to relegate the parties to the trial Court for determination of that issue. However, the counsel for the appellant, in all fairness, submits that instead of remanding the matter to the lower Court for that inquiry, the appellant would be content if 50% back wages are granted to him by this Court. Indeed, the counsel for the respondent has opposed this suggestion. However, we have no difficulty in acceding to the suggestion of the appellant having regard to the decision of the Apex Court in 4 Allahabad Jal Sansthan vs. Daya Shankar Rai & Anr., reported at 2005 II CLR 453. In paragraph 18 of the said decision the Apex Court has observed thus : “18. In view of the fact that the respondent had been reinstated in service and keeping in view the fact that he had not raised any plea or adduced any evidence to the effect that he was remained unemployed throughout from 24.1.1987 to 27.2.2001, we are of the opinion that the interest of justice would be sub-served if the respondent is directed to be paid 50% of the back wages.” 6. In the present case, the appellant is placed on a better pedestal. Inasmuch as, he has clearly pleaded that he was unemployed which plea of the appellant has not been refuted by the respondents. In such circumstances, we proceed to accede to the request of the appellant to award 50% back wages and all other monetary benefits for the relevant period. 7. The appellant succeeds on the above terms. Appeal allowed accordingly. No order as to costs. JUDGE JUDGE RR.