IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 16189 of 1996 Between: A.Dasaratha Raju, S/o. Gopal Raju. R/o. Vemulawada, Karimnagar. ..... PETITIONER AND 1 The Depot Manager, APSRTC., Kamareddy, Nizamabad. 2 The Preisiding Officer, Labour Court No. II, Hyderabad. ..RESPONDENTS Counsel for the Petitioner:MR.V.NARASIMHA GOUD Counsel for respondent No.1:MR V.PADMANABHA RAO Counsel for respondent No.2: None appeared The Court made the following : O R D E R: This writ petition is filed for a writ of Mandamus to set aside award dated 10-02-1994 passed in I.D.No.193 of 1992 on the file of the Labour Court-II, Hyderabad, to the extent the petitioner was denied back wages, for the period during which he was out of service. Heard Sri V.Narasimha Goud, learned counsel for the petitioner, and Sri V.Padmanabha Rao, learned counsel representing the learned Standing Counsel for the respondents. By the award, which is partly impugned in this writ petition, the Labour Court directed reinstatement of the petitioner without back wages. The necessity of this Court examining the correctness of the award, by which the petitioner is denied back wages, is obviated because of the admission by the learned counsel for the petitioner, albeit belatedly that the petitioner has not pleaded either before the Labour Court or in this writ petition that he was not gainfully employed, during the period when he was out of service. The learned counsel for the petitioner also admitted that the law is well settled by a catena of judgments of the Supreme Court in Kendriya Vidyalaya Sangathan vs. S.C.Sharma[1], U.P.State Brassware Corporation Limited vs. Uday Narain Pandey[2] and J.K.Synthetics Limited vs. K.P.Agrawal and another[3], that the initial burden to show that the workman was not gainfully employed and that therefore, he is entitled to back wages is on him. In Kendriya Vidyalaya Sangathan (1 supra), the Supreme Court held: “when the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The Initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.” In U.P.State Brassware Corporation Limited (2 supra), the Supreme Court observed: “61. It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.” This view of the Supreme Court is reiterated in J.K.Synthetics Limited (3 supra). In view of the admitted fact that the petitioner failed to raise this basic plea, much less produce material in support thereof, he is not entitled to the relief of back wages, as claimed in this writ petition. The writ petition is, therefore, dismissed. C.V.NAGARJUNA REDDY, J Dated 1st December, 2008 vrn [1] (2005) 2 Supreme Court Cases 363 [2] (2006) 1 Supreme Court Cases 479 [3] (2007) 2 Supreme Court Cases 433