1. Vide this judgment above mentioned two appeals would be disposed of as they have arisen out of common order dated 15.12.2018 passed by the learned Single Judge.2. Workman, Dinesh Chandra Sharma worked with the management as a Room Attendant from 15.12.1978 onwards. Workman was suspended on 14.07.1990 by levelling charges of misbehaviour against him. Enquiry was ordered to be conducted against the workman and on the basis of enquiry report, services of workman were terminated on 24.07.1991. Initially, workman approached this Court by way of writ petition challenging his termination order, but the writ petition was dismissed by relegating the workman to avail alternate remedy as per law. Thereafter, workman raised an industrial dispute by serving a demand notice. Labour Court vide award dated 22.12.2015 allowed claim of the workman and set aside his termination order.3. It was ordered that the workman be reinstated in service with continuity of service and full back wages.4. Aggrieved against the said award, management filed writ petition before this Court. Before learned Single, management had only challenged the part of the award whereby full back wages were granted to the workman. Learned Single Judge partly allowed the writ petition vide impugned order dated 15.12.2018 and modified the award to the extent that the workman would be entitled to receive 50% back wages. Aggrieved against the order passed by the learned Single Judge, management as well as workman have preferred above mentioned appeals.5. Learned counsel for the management has submitted that the workman was not entitled to receive back wages as he had failed to plead or prove before the Labour Court that he was not gainfully employed after the date of his termination. Since the workman had not pleaded in the statement of claim or established before the Labour Court that he was not gainfully employed elsewhere after his termination, management could not be expected to lead any evidence to the fact that the workman was gainfully employed after the date of his termination. In support of his arguments, learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Others, (2013) 10 SCC 324, wherein it was held as under:"38. The propositions which can be culled out from the aforementioned judgments are:38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in M/s. Hindustan Tin Works Pvt. Ltd. vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. & Others, (1979) 2 SCC 80.38.7. The observation made in J.K. Synthetics Ltd. vs. K.P. Agrawal (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."6. Learned counsel has next placed reliance on the judgment of the Hon'ble Supreme Court in the Management of Regional Chief Engineer P.H.E.D. Ranchi Vs. Their Workmen Rep. By District Secretary, 2018 LLR 1167, wherein it was held as under:"12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee."7. Learned counsel for the workman has submitted that the Labour Court had rightly granted back wages to the workman. In-fact, workman was not gainfully employed after the date of his termination. Learned Single Judge has erred in reducing the back wages awarded to the workman by 50%.8. In the present case, the question that requires consideration is that as to whether workman was entitled to receive back wages on account of his reinstatement in service.9. It has been held in the case of Deepali Gundu Surwase (supra) that ordinarily, an employee or workman whose services are terminated is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. Once the workman pleads or gives a statement in this regard, then in case the management wants to avoid payment of full back wages, it is required to plead as well as lead evidence to the effect that the workman was gainfully employed elsewhere. It has been further held that the burden of proof of the existence of a particular fact lies on the person who was to make a positive averment about its existence. Hence, once the employee shows that he was not employed elsewhere after his termination from service, then onus would lie on the employer to establish that the workman was gainfully employed elsewhere.10. To the similar effect is the decision of the Hon'ble Supreme Court in The Management of Regional Chief Engineer P.H.E.D. Ranchi (supra).11. In the present case, admittedly workman had not pleaded in the statement of claim that he was not gainfully employe
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d elsewhere after the termination of his services. Even before the Labour Court, workman had not stated that he was not gainfully employed elsewhere after the date of his termination of services. Since in the present case, workman had failed to plead or establish that he was not gainfully employed anywhere after the termination of his services by the management, learned Labour Court as well as learned Single Judge fell in error in ordering payment of back wages to the workman.12. In the present case, we are of the considered opinion that the workman was not entitled to receive any back wages. Accordingly, it is ordered that the workman is not entitled to receive any back wages. So far as the part of the award whereby workman was ordered to be reinstated in service with continuity of service is concerned, the same is not under challenge and is accordingly upheld.13. D. B. Civil Special Appeal (Writ) No. 398/2019 filed by the management stands allowed.14. Consequently, D. B. Civil Special Appeal (Writ) No. 739/2019 filed by the workman stands dismissed.