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Judgment
It is stated by Shri Dixit that the Respondent No. 1/workman has been reinstated from 1-4-1991; therefore, now only the question of payment of back wages remains, and for that there was no inquiry in the Labour Court. Placing reliance on a Division Bench decision of this Court in. M. P. Electricity Board and Ors. v. Basant Kumar and Others 1989 JLJ 253, Shri Dixit contended that there ought to have been an issue about back wages and an inquiry in the matter, so that the Petitioner/employer could have placed material so as to slice off the back wages or part of it.
After hearing counsel, we are of the opinion that No. interference can be made in this petition, as the Petitioner/employer remained ex parte after filing of the written statement. A perusal of the award shows that for determining the issue and for grant of relief, the Respondent No. 1/workman examined himself and stated on oath that after his forced unemployment he was not gainfully employed anywhere and remained unemployed. In view of this, it cannot be said that there was no inquiry. After filing of written statement, the Petitioner rather preferred not to take part in the proceedings before the Labour Court.
Recently, this Court considering Basant Kumar''s case (supra) and placing reliance on two Supreme Court decisions in Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, and G. T. Lad and Others Vs. Chemical and Fibres of India Ltd., and two earlier Division Bench decisions of this Court in Singeshwar Prasad Hajari v. General Manager Bhilai Steel Plant 1979 MPLJ 773, and Ramprakash Bhikaram v. M. P. State Road Transport Corporation, Bhopal 1980 MPLJ 29, has held in State of M. P. v. Harilal alias Munna and Anr. M. P. No. 471/1990 decided on 14-8-1991, that it is the employer who was to plead and prove that a workman, after his termination, remained gainfully employed, so as to slice off back wages or part thereof, and for that no material was placed by the employer.
Here it may be stated that the earlier Division Bench decisions of this Court in Singeshwar Prasad Hajari and Ramprakash Bhikaram (supra) were not brought to the notice of the Division Bench, which decided Basant Kumar''s case (supra).
Besides the law which is clear, on facts, we find that the workman/ Respondent No. 1 has led evidence in respect of his unemployment after his termination, to rebut that there was no cross-examination nor any evidence was led. The parties were alive of the question in issue. Hence, the mere non-framing of the issue would not entitle the Petitioner/employer to invoke, for the first time, the jurisdiction of this Court under Article 227 of the Constitution of India, when no grievance was raised before Labour Court. It is settled that when ''parties'' were conscious of issue, absence of pleading or non-framing of the issue will not be a ground for setting aside a judgment or an award, unless it is shown that prejudice has resulted. Even if it is assumed that onus was on the workman, which is not the correct position of law, the onus lost its importance, as the evidence was led by the workman. See M/s. Hindustan Steel Ltd. v. Presiding Officer, Labour Court, Orissa AIR 1977 SC 31 and Cox and Kings (Agents) Ltd. Vs. Their Workmen and Others,