1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1615 OF 2008. Ramdas S/o Baburao Shinde ... Petitioner. Versus Ashok Sahakari Sakhar Karkhana Ltd., through its Managing Director, Ashok Nagar, Post Karegaon, Tq.Shrirampur, Dist.Ahmednagar. ... Respondent. ... Mr.Pradeep Shahane, advocate for the petitioner. Mr.Ashok Patil, advocate holding for Mrs.Renuka Ghule, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 08.07.2009. PER COURT 1. Heard. 2. By this petition, the petitioner impugns part of the judgment rendered by the 2 Labour Court regarding denial of back wages to him while allowing his complaint (ULP) No. 60/2000. The Labour Court held that out of three (3) charges levelled against him, two charges of insubordination and willful slowing down in performance of work were not proved. The Labour Court, however, held that charge of habitual neglect of work or gross or habitual negligence as contemplated in Standing Order 26(m) was proved. The Labour Court, therefore, held that order of dismissal from service was shockingly disproportionate to the charges proved inasmuch as the insubordination or disobedience and purposeful sloath in the day today work was not proved. The complaint was partly allowed with direction to reinstate the petitioner but the back wages were not allowed. 3. The grant of back wages depends on several circumstances. No straitjacket formula can be involved in this behalf. It is well settled that the payment of back wages having a discretionary element involved in it has to be dealt with having regard to the fact and 3 circumstances of each case. Mr.Shahane, seeks to rely on Division Bench judgment in "Taranjitsingh I.Bagga Vs. Maharashtra State Road Transport Corporation through the Divisional Controller, Amravati Division, Amravati" Letters Patent Appeal No.4 of 2007 in W.P.No.4733/2005. The Division Bench of this Court held that the Courts can not be oblivious of the fact that an employee, whose services were terminated wrongly, has not only to avoid for his survival by getting such odd jobs as he can, but has also to fight a battle for getting himself reinstated in service. It is observed : "Therefore, we would not be in a position to conclude that the moment a person is sacked he can find alternate means of his wherewithal. In this situation, it would be unjust to insist upon a technical requirement of pleading and proof of absence of gainful employment by an employee who is wrongfully dismissed." 4 The Apex Court, however, in "U.P.State Brassware Corporation Ltd. and another Vs. Udai Narain Pandey, 2006 (108) FLR 2011. "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 Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman" It is explicit, therefore, that the plea has to be raised by the workman and has to be substantiate by him. For, the employer has no business to go after the employee after his dismissal from service and watch whether he is 5 gainfully employed elsewhere or continued to be without any employment as such. Needless to say, in view of the Apex Court judgment, it is for the employee to plead and prove that there was absence of gainful employment during the period of his wrongful termination and reinstatement. The Apex Court in "M.D.Balasaheb Desai Sahakari S.K. Ltd. and Kashinath Ganapati Kambale" [2009(120) FLR 510, "Municipal Council, Sujanpur and Surinder Kumar" 2006-II-LLJ 240, "Kendriya Vidyalaya Sangathan and another and S.C.Sharma" 2005-II-LLJ 153, reiterated the principles to be applied while granting back wages. 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 6 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. Hence, the petition is dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/wp161508