Pawan Kumar Vs. H.P. State Industrial Development Corporation and anr.

- orderdev darshan sud, j.1. the petitioner has challenged the order of the industrial tribunal-cum-labour court, dated march 16,2001, passed in reference no. 62 of 1997, whereby the petitioner has been ordered to be reinstated in service with full back seniority. while allowing the reference filed on behalf of the petitioner, it was ordered that he shall be entitled to 20% of the wages. there is no evidence on the record by the workman to show that he was unemployed.2. it is now well settled that unless the employee shows that he was not gainfully employed, for which purpose the burden is on him, the workman is not entitled to any back wages.3. the hon'ble supreme court of india in kendriya vidyalaya sanghathan and anr. v. s.c. sharma : (2005)iillj153sc , has held that the entitlement to back wages stands determined by the hon'ble supreme court in number of decisions. in para-11 of the judgment in kendriya vidyalaya case (supra), their lordships have held as under:15. applying the above principle the inevitable conclusion is that the respondent was not entitled to full back wages which according to the high court was natural consequence. that part of the high court order is set aside. 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.4. this proposition of law has been reaffirmed in u.p. state brassware corporation. limited and anr. v. uday narain pandey : (2006)illj496sc and state of m.p. and ors. v. arjunlal rajak : (2006)iillj104sc .5. there is thus no merit in the writ petition which is accordingly dismissed. there shall be no order as to costs.