AMARESHWAR SAHAY, J. - (1.) THIS application has been filed by the petitioners against that part of the award of the Labour Court contained in Annexure -4 to the writ application, whereby the Labour Court has not awarded the back wages to the members of the petitioners though order for their reinstatement was passed by him.
(2.) THE following dispute vide notification dated 18/06/1987 was referred to the Labour Court for adjudication: Whether the lock out of Sandhya Cinema, Purilia Road, Ranchi from 25/10/85 is justified? If not whether the workmen are entitled to re -employment or any other type of relief ? Subsequently, by corrigendum dated 10 th June 1988 the reference was amended and in the 3 rd line of the reference in place of word "reemployment" it was substituted as "reinstatement". The learned Labour Court by the impugned award, Annexure -4, held that the lock out declared by the Management was unjustified and illegal and, thereby, passed an order for reinstatement of the employees. It was further held that admittedly the cinema hall had already reopened and all the employees were taken into the service again."
(3.) THE learned Counsel appearing for the petitioner submitted that since the employees of the cinema hall has already been reinstated after declaration that the lock out of the Management was illegal and, therefore, by necessary sanction they were entitled to get the relief of the entire back wages also. According to the learned Counsel for the petitioner the terms of the reference need not contain as to whether the workmen were entitled to the back wages or not. As a matter of fact when the reinstatement was ordered by necessary implication that the reinstatement of the employees has to be with the full back wages except in certain special circumstances where the back wages can be denied to the employees. In support of his submission the learned Counsel for the petitioner has relied on the decision in the case of "Surendra Kumar Verma v. The Central Government Industrial Tribunal -cum Labour Court, New Delhi and Anr. reported in 1980 LIC 1292 (SC)" and in the case of "Haryana Urban Development Authority v. Devi Dayal reported in 2002 LIC 1090 (SC)." 4. On the other hand, Mr. P.K. Prasad, the learned Counsel appearing for the Management has submitted that the terms of reference was such that there was no scope for the Labour Court to award back wages to the petitioners. In terms of reference after the word "reinstatement" in the last line of the reference the word "or" was used meaning thereby that the terms of reference was as to whether the workmen were entitled to reinstatement or any other type of relief. He submitted that if in place of the word or the word and would have been used then it could have been very well said that the Labour Court could have considered for awarding the back wages. It was next contended by Mr. Prasad that in view of the decision in the case of Kendriya Vidyalaya Sangathan and Anr. v. S.C. Sharma the petitioner cannot be held to be entitled for the back wages, even after reinstatement. Elaborating his argument, he submitted that in view of the aforesaid decision of the Supreme Court for getting the relief of the back wages, the initial burden is on the employees to show that they were not gainfully employed and after they place the materials in this regard, the employer may bring on record the materials to rebut the said claim of the employees. But in the present case there is no pleading at all by the petitioner that the employees were not gainfully employed during the period of lock out. Rather on the contrary, in the counter affidavit the Management has specifically stated giving specific instances that the employees were gainfully employed during the aforesaid period and, therefore, in any view of the matter, the petitioners were not entitled to get the back wages. In this regard Mr. Prasad has referred the statement made in paragraph -7 and 8 of the counter affidavit, filed by the Management, which reads as under: 7. That the Respondent No. 2 further states that the employees of Sandhya Cinema were gainfully employed during the said period. One of the employees, who has since been reinstated namely Suresh Chandra Raut, has himself stated in the evidence before the Labour Court that he used to work as a Plumber during the said period and was earning Rs. 50 per day. 8. That the Respondent No. 2, further states that besides the aforesaid admission of Suresh Chandra Raut the following employees were also gainfully employed, namely Ramta Prasad, Chandi Das Mitra, Md. Aman, Md. Allam and Kannu Bhowmick. Out of these five employees, Ramta Prasad, Chandi Das Mitra and Md. Aman were not willing for reinstatement. However, Md. Allam and Kannu Bhowmick accepted reinstatement and they are presently working with the Respondent No. 2. The above statements made in the counter affidavit have not been denied by the petitioners by filing any rejoinder.;