Back wages after reinstatement depend on proving non-gainful employment and the surrounding evidence on record.

In claims for back wages after reinstatement, the employee bears the initial burden of showing that he was not gainfully employed after termination, because that fact lies within his special knowledge under the principle reflected in Section 106 of the Evidence Act. That burden may be discharged through pleadings, an affidavit, or other material, depending on the facts. Where the record shows an initial assertion of unemployment but later affidavits withdraw or omit that claim, full back wages for the entire period may not be justified. The extent of relief turns on the pleadings, evidence, and surrounding circumstances.

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Issues: Whether the appellant, whose reinstatement had been ordered, was entitled to back wages and whether he had discharged the burden of showing that he was not gainfully employed after termination.

Analysis: The burden regarding gainful employment after dismissal lies initially on the employee, as the fact is within his special knowledge and is governed by the principle reflected in Section 106 of the Indian Evidence Act, 1872. The Court held that this is a negative burden which may be discharged by pleadings, an affidavit, or other material depending on the facts. In the present case, the statement of claim contained a specific assertion that the appellant was unemployed, and he was also cross-examined on the issue. At the same time, the later withdrawal of the earlier affidavit and omission of the specific assertion in the fresh affidavit meant that full back wages for the entire period could not be granted. The record did not show any positive material from the employer proving alternative income, but the circumstances justified limiting relief.

Conclusion: The appellant was held entitled to back wages only in part, and not for the entire period between termination and reinstatement.

Ratio Decidendi: In claims for back wages after reinstatement, the employee bears the initial burden to show non-gainful employment, but the extent of relief depends on the pleadings, evidence, and surrounding circumstances of the case.

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