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TMI Blog2008 (10) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant questioning the validity of an award dated 14.03.2002 directing it to reinstate the respondent - workman with full back wages was dismissed. 3. Appellant is a cooperative society. It appointed the respondent on 1.07.1987 on the post of clerk. His services were terminated in the year 1990. Questioning the said order of termination, an industrial dispute was raised. An award was made on 3.11.1995 directing the appellant to reinstate the respondent - workman. Appellant - Society, however, had been suffering losses. Till 1996, it suffered a loss of Rs. 18.95 lakhs. The Board of Directors held a meeting on 21.02.1997 wherein a resolution was passed to the effect that the services of some of the employees should be dispense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95-1997, award of reinstatement with full back wages should not have been passed. 7. It was contended that even if there was a technical violation of the provisions of Section 25F of the Industrial Disputes Act, 1947, as has been held by the High Court, the Industrial Tribunal as also the High Court ought not to have directed reinstatement of the respondent with full back wages. 8. Ms. Shikha Roy Pabbi, learned Counsel appearing on behalf of the respondent, on the other hand, submitted that the cooperative society has merged with apex body and the latter has earned a huge profit and in that view of the matter this Court may not exercise its discretionary jurisdiction. It was submitted that even after the termination of services of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back wages; one of the relevant factors would indisputably be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after termination of his service. Some of the other relevant factors in this behalf have been noticed by this Court in G.M. Haryana Roadways v. Rudhan Singh (2005)IIILLJ4SC stating: 8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cast-iron rule can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Indian Evidence Act, the burden would be on the workman. The burden, however, is a negative one. If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the concerned employee was in fact gainfully employed. In Surinder Kumar (supra), this Court held: The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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