KRISHI UPAJ MANDI SAMITI Vs. MUZAHID HUSSAIN

JUDGEMENT

(1.) BY this petition under Articles 226/227 of the Constitution of India, the petitioner has challenged the award dated January 27, 1994 pronounced on February 21, 1994 passed in case No. 18/ ROA/reference by the Labour Court, Durg (Annexure P-2), whereby the Respondent No. 1 was directed to be reinstated with full back wages as oral order of discontinuance of service of Respondent No. 1 was held to be illegal as passed in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short the 'act' ).

(2.) LEARNED counsel for the petitioner submitted that there is no evidence on record to prove that the respondent was continuously in the employment for a period of 240 days preceding to the date of discontinuance. In any case the workman was not entitled to back wages as he has not led evidence of remaining unemployed during the period of forced unemployment.

(3.) SHRI Vivek Rusia, learned counsel for the respondent submitted that the workman was in continuous employment from December 13, 1988 and was performing his duties satisfactorily as Habdar. The petitioner has not established from the record that the workman was not in continuous employment and was not paid wages for the period as alleged by the workman right from December 13, 1988 to May 31, 1991. It is also submitted that the petitioner having failed to produce the documentary evidence, the Labour Court on the evidence adduced by the parties rightly held that the workman was continuously in employment from December 13, 1988 to May 31, 1991. As the discontinuance was in violation of Section 25-F of the Act, the Labour Court rightly declared it as illegal. As regards gainful employment law is well settled that is the burden of the employer to plead and prove that a workman was gainfully in employment during the period of his forced unemployment, but, the petitioner has not placed any material nor the circumstances for not awarding back/wages. However to put an end to the litigation, respondent is willing to forego his 50% of the back wages, therefore, the award be modified accordingly.