- (1.) This Letters Patent Appeal has been filed under Clause X of the Letters Patent, 1919 by the appellant management laying challenge to the judgment and order of the learned Single Judge dated 21.5.2010 upholding the award of the Labour Court, Circle-1, Faridabad dated 6.4.2009 upholding the reinstatement but modifying the award from payment of full back wages to none. The brief facts are that the services of the respondent-Workman were terminated on 5.7.2002 after holding an alleged enquiry for misconduct. The reference made by the appropriate Government under section 10(1)(c) of the Industrial Disputes Act, 1947 (the Act), came to be registered as Reference No. R/02/2004. The Labour Court in its award found that a charge-sheet Ex. MW-11/3, though placed on the file did not bear the signatures of any officer of the Management. This was admitted by MW-1 in his statement. Several other discrepancies were found in the evidence which included largely material fact that no enquiry report; the corpus of the defence of the management itself, was produced on the record of the Labour Court. The charge in the present case was fraudulent entry into service and forgery. The charge was serious enough to have merited dismissal but it remained unsubstantiated and unproved. In the absence of such vital evidence the Labour Court had no option but to set aside the dismissal/termination order. Reinstatement was ordered with full back wages, Aggrieved by the award the writ petition was filed. The learned Single Judge in the order impugned upheld reinstatement but did not award back wages and to that extent modified the award. The denial of back wages according to the learned Single Judge was for the reason that the workman had not asserted in his demand notice or in any statement before the Labour Court and also in pleadings before the learned Single Judge in the writ petition that he remained unemployed after termination of his services. The learned Single Judge held that the onus was on the workman to prove that he was unemployed and that there was failure on his part to discharge the onus.
(2.) We have heard the learned Counsel for the parties at length and have perused the record produced on the file of the appeal paper book.
(3.) On an examination of the record as presented before us, we find that in the written statement filed by the management before the Labour Court there was no assertion that the workman is gainfully employed therefore he should not be granted back wages in any case or that in the event on non-acceptance of plea of upholding the dismissal order on merits, back wages should be denied as the workman has remained gainfully employed during the period of idleness consequent upon the dismissal.;