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Judgment
A. P. Lavande, J.—Heard Mr. Amonkar, learned counsel for the petitioner. By this petition under Article 227 of the Constitution of India, the petitioner takes exception to the judgment and award dated 15/09/2010 passed by the Labour Court-II at Panaji in Case No. IT/59/07 by which the reference made u/s 10 of Industrial Disputes Act, 1947 has been partly allowed.
The petitioner raised industrial dispute and conciliation proceedings were held before the Deputy Labour Commissioner and Conciliation Officer, Margao regarding his termination by respondent no.1 which ended in a failure report and thereafter the dispute was referred by the State Government to the Labour Court-II. By the impugned award the Labour Court has held that the termination of the services of the petitioner w.e.f 1/12/2004 was illegal and unjustified and consequently directed the respondent no.1 to re-instate the petitioner in their service with 50% of back wages and continuity in services with immediate effect.
The petitioner is aggrieved by the impugned award to the extent it directs payment of 50 % back wages instead of full back wages.
According to Mr. Amonkar, learned counsel appearing for the petitioner, once the Labour Court has held that the termination of the petitioner was illegal, the Labour Court ought to have awarded 100% back wages and to that extent the impugned award cannot be sustained.
According to Mr. Amonkar in the statement of claim submitted by the petitioner, a statement was made by the petitioner that he was unemployed and the same was produced in the course of evidence by the petitioner and there was no challenge to the same.
Having heard the leaned counsel for the petitioner and having perused the record, I am of considered opinion that no case has been made out for interference with the impugned award.
In a catena of decisions, the Apex Court has taken a view that in case of termination, the workman is not entitled to 100% back wages and the grant of the same depends upon the facts and circumstances of the case. The burden is on the workman to prove that he was unemployed from the date of termination till the date of his deposition and he is also expected to depose as to attempts made by him to secure employment during the said period. Except for the bare statement in the statement of claim that the petitioner was unemployed there is no statement by the petitioner in the affidavit filed by him before the Industrial Tribunal that he was unemployed during the entire period after his termination till date of his deposition. The mere fact that the petitioner made a statement in the claim petition that he was unemployed, in the absence of any evidence in support of his claim, would not help the petitioner to claim 100% back wages.
The view taken by the Apex Court in the case of Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, that once termination of a workman is held to be illegal and unjustified the workman is entitled to full back wages has been diluted by the Apex Court in a catena of decision rendered by the Apex Court during the last decade.
8 In this view of the fact that the petitioner has not discharged the burden cast on him to prove that he was not gainfully employed during the period of termination inspite of efforts made by him to get employment, the grant of 50% back wages cannot be faulted.
In view of the above, I do not find any ground to exercise supervisory jurisdiction under Article 227 of the Constitution of India. Hence, the petition is dismissed.