V.K. Mehrotra, J. - (1.) This petition under Article 226 of the Constitution assails the award made by the Labour Court, U. P., at Agra in Adjudication Case 76 of 1971 by which it held that the termination of the services of the concerned workman was illegal. Under the award, the workman concerned was granted relief of reinstatement with effect from December 16, 1968 the date of his removal from service. The award was made on Aug. 30, 1977.
(2.) In para 8 of the award it was observed by the Labour Court that, inasmuch as, the workman had failed to establish that he had remained unemployed since after the date aforesaid or that he was not able to earn the same amount of wages which he was earning while in the employment of the third respondent (M/s. Jain Glass Works Pvt. Ltd.), he was not entitled to the award of back wages till the date of his reinstatement. More so, because the workman concerned had failed to establish that he had made efforts to mitigate the pecuniary loss during the period of his forced unemployment. The court, therefore, directed that the workman concerned should be reinstated, with continuity of service but paid back wages only for the period between the date of the award and the date of his reinstatement by the employer. Hence, the present petition on behalf of the workman.
(3.) The submission made on behalf of the petitioners is that the Labour Court was in error in taking the view that the workman was not entitled to back wages for the period between the date of his that of the award for his failure to prove that he was not in employment or was not able to earn any wages during that period. It is urged that the burden to aver and establish that the workman had done so was on the employers. The stand, on the contrary, on behalf of the employer in this respect is that unless it was pleaded on behalf of the workman that he had remained unemployed or was not able to earn any wages during that period, it was not for the employer to allege or prove anything in that regard. Counsel for the parties have placed reliance on some decided cases in support of their submission.;