Jai Krishan vs Pepsu Road Transport Corporation and Another

J.S. Sekhon, J.—The services of the petitioners were terminated by respondent No. 1 but the Presiding Officer, Labour Court, Patiala, vide his award dated December 28, 1979 held the same to be illegal and ordered his reinstatement. The Labour Court did not award any back wages to the petitioner on the ground that the had failed to prove being not employed during the period he remained idle. The petitioner, in this Civil Writ; Petition has challenged the aforesaid award of the Labour Court of Patiala mainly on the ground that the onus to prove whether the petitioner remained gainfully employed during the period of his forced idleness was on the employer and not on the employee.

I have heard Mr.Surj it Singh Senior Advocate and Mr.Manj it Khaira, Senior Advocate, the learned counsel for the parties.

In view of the finding of the Supreme Court in M/s Hindustan Tin Works Pvt. Ltd v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd, AIR 1979 Supreme Court 75 to the effect that onus lies on the employer to prove that he employee was gainfully employed during the period of enforced idleness as well as the view of the Full Bench of mis Court in Hari Palace, Ambala City v. The Presiding Officer Labour Court & another, 1979RL.R720, there is no escape but to conclude that Labour Court had taken a wrong view in hold that the onus in this regard lay on employee. It appears that this aspect of the matter regarding the burden to prove was not brought to the notice of the Presiding Officer of the Labour Court. Thus, in this situation the petitioner is entitled to all the back wages because the employer had failed to establish that he remained gainfully employed during tlilSperiod.

Consequently, the impugned part of the award of the Presiding Officer, Labour Court, is hereby set aside by accepting this Writ Petition and allowing the petitioner the entire back wages for the period of his enforced idleness. The parties are left to bear their own costs.