ASHOK KUMAR Vs. DELHI GYMKHANA CLUB LIMITED

JUDGEMENT

(1.) This writ petition has been filed by Sh. Ashok Kumar) who was Messing Clerk in the Delhi Gymkhana Club Limited, Delhi. His services were terminated with effect from 16th August, 1976 by the Club, respondent No. 1. He raised an industrial dispute and the same was referred to the Presiding Officer of Labour Court as case No.L.C.I.D. No. 278 of 1979. The learned Labour Court by the impugned award dated 23rd March, 1982 held that the terminatioa of the services of the petitioner vvas illegal and unjustified and has been entitled to reinstatement with continuity of service. Regarding the back wages, the learned Labour Court took the view that unless and until the workman had stated in examnat:ion -inchief that he was not earning during the period of his termination; his claim for back wages must tail. The learned Presiding Officer felt that the burden in such cases was on the employee seeking back wages. It is this part of the award, which has been challenged by the employee.

(2.) In the claim petition filed by the employee before the Labour Court, he had mentioned that he was unemployed and the Management had taken the position that he was in service. On this point, an issue was also framed by the learned Labour Court to the effect "whether the workman is gainfully employed and if so, its effect ?".

(3.) It has been held by the Supreme Court in the case of M/s. Hindustan Tin Works Pvt. Lid. v. The Employees of M/s. Hindustan Tin Woks Pvt. Ltd., A.I.R. 1979 S.C. 75 wherein at page 79 (para 12) Desai, J. speaking for the Supreme Court observed, "if the normal rule in a ca"se like this is to award full back wages, the burden will be on the appellant employer to establish circumstances which would permit a departure from the normal rule". Justice Desai has also made reference to a decision of Gujarat High Court in Dhari Gram Panchayat v. Shri Brabad Saurashtra Safai Kamdar Mandal Rajkot: 1971(1) Labour Law Journal 508, and also observed that "the party objecting to the grant of lull back wages must establish the circumstances necessitating the departure from the normal rule. The same view was followed by the Supreme Court in Gujarat Steel Tubes Ltd. etc. v. Gujarat Steel Tubes Mazdoor Sabha* Ors, A 1.R. 1980 S.C. 1896 and again in Surander Kumar Verma etc. v. The Central Govt, Industrial Tribunal Cum .Labour Court, A.I.R. 1981 S.C. 422 and in Mohan Lal v. The Management of M/s. Bharat Electrical Ltd,, A.I.R. 1981 S.C. 1253.