1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.4509 of 2010 (Vivek W. Kherdikar v. Upvibhagiya Adhikari, Sarvajanik Bandhkam, Upvibhag Mehkar) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Smt. P.M. Chandekar, Advocate for Petitioner. Shri J.B. Jaiswal, AGP for Respondent. Coram : R.K. Deshpande, J. Dated : 14 th November, 2011 1. The Labour Court allowed Complaint No.17 of 1994 filed by the petitioner by setting aside the order of termination dated 15-12-1993 and directing his reinstatement with full back wages and continuity in service with effect from 15-12-1993. This was the subject-matter of challenge in Revision (ULP) No.12 of 2000 at the instance of the respondent. The said revision was partly allowed by the Industrial Court by confirming the order of reinstatement with continuity in service and setting aside the order of payment of full back wages. As a result, the petitioner-complainant is held entitled to be reinstated in service with continuity, but denied the back wages. This is the subject-matter of challenge in this petition. 2. The question of back wages has been considered by the Labour in Court in para 7 of its judgment as under : 2 “7. Once the termination is held to be illegal the normal rule is reinstatement with full back wages and continuity of service, unless exception is shown. It is settled principle of law that the burden lies upon the employer to prove that, the workman was in a gainful employment during intervening period. There is no evidence on record to show that the complainant was in gainful employment during intervening period, hence, complainant is entitled for the relief of reinstatement with full back wages and continuity in service. ...” The Industrial Court has reversed the said findings as under : “22. However, while granting the relief finally in favour of the original-complainant; the Ld. Judge has failed to appreciate and address itself in respect of that, as per the settled principle of law that no 'daily-wage-earner' is entitled to get the benefit of full back-wages; but only to the extent of his reinstatement and continuity of service. On this count, the findings of the Ld. Judge are said to be 'perverse' to that extent.” 3. The contention of Smt. Chandekar, the learned counsel appearing for the petitioner, is that the Industrial Court ought to have granted at least 50% of the back wages. She has relied upon the judgments of the Apex Court in the cases of State of U.P. & Another v. Rajendra Singh Butola & Another, reported in 2000-I-LLJ 262; and Jagbir Singh v. Haryana State Agriculture Marketing Board & Anr., reported in 2009 III CLR 628. 3 4. In the latter judgment, i.e. Jagbir Singh's case, cited supra, the Apex Court has dealt with the aspect of payment of back wages in para 7 of the said decision, which is reproduced below : “7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.” After taking review of several judgments, it has been held that in a situation narrated in the said judgment, instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. It was held that in lieu of reinstatement, the employee should be paid compensation of Rs.50,000/-. It is not the ratio of the judgment that apart from the reinstatement and continuity in service, the compensation or part of back wages should be paid to the employee. 5. It cannot be disputed that the burden of proof in respect of claim for back wages lies upon an employee, in view of the 4 shift in the approach adopted by the Apex Court. The employee has to plead and prove his entitlement for the back wages. The learned counsel for the petitioner could not point out any pleading in respect of back wages and she has simply relied upon the findings recorded by the Labour Court in support of her contention that the employee be held entitled to at least 50% of the back wages. In view of the judgment of the Apex Court in Jagbir Singh's case, it is obvious that the findings recorded by the Labour Court are contrary to the well-settled principles of law. The same, therefore, cannot be maintained. 6. The learned counsel for the petitioner submits that in the cross-examination of the petitioner-complainant, no questions are put on the gainful employment of the petitioner-complainant. Undisputedly, the burden is upon the employee to lead evidence and establish his entitlement for payment of back wages. There is no evidence to establish the claim for back wages led by the complainant. 7. In view of above, no fault can be found with the approach adopted by the Industrial Court. 8. In view of above, the petition is dismissed. Judge pdl