TaxTMI 
TaxTMI 
2008 (12) TMI 814
X X X X Extracts X X X X
X X X X Extracts X X X X
....alleged misconduct on his part. He was placed under suspension. A charge sheet dated 29.12.1983 was issued against him, inter alia, in respect of the following charges: (i) Late attendance between 2.7.1983 to 20.12.1983 on 16 occasions. (ii) Absence without leave between 6.10.1983 to 22.12.1983 for 20 days. (iii) Leaving the place of work without permission and without seeking leave and attempt to obtain wages between 23rd to 30th November, 1983. (iv) Leaving premises without permission and leave between 2.12.1983 to 20.12.1983 on 6 occasions. (v) Signing the muster without remaining present and attempting to seek wages between 16.9.1983 to 16.11.1983 for 9 days. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....witnesses to establish that the respondent had been running a footwear shop under the name and style of Amol Footwear. The Labour Court did not place any reliance thereupon holding that the appellant had not produced any licence on record to show that the respondent was running the said shop. The Labour Court, while holding that the respondent had been found guilty of committing the misconduct, passed an award of reinstatement with continuity of service with 50% back-wages on the premise that the punishment of termination from service was disproportionate to the charges of misconduct leveled against him. 6. An appeal preferred there against by the appellant was dismissed. On the question as to whether the respondent was gainfully empl....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this Court only on the quantum of back wages. 10. Mr. Shivaji M. Jadhav, learned Counsel appearing on behalf of the appellant would submit that the Industrial Court as also the High Court committed a serious error in granting reinstatement with continuity of service and half back wages in favour of the respondent by wrongly placing the onus of proof on the appellant. Leaned counsel would contend that it is now well settled that back wages ought not to be automatically granted and keeping in view of the fact that the services of the respondent were terminated in the year 1984 and the award of the labour court having been rendered in the year 1991, the grant of 50% back wages was wholly unjustified. 11. Mr. Vinay Navare, learned Counse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman. 62. In Kendriya Vidyalaya Sangathan v. S.C. Sharma (2005)IILLJ153SC , this Court held: (SCC p. 366, para 16) ...When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o be imposed but in this regard the number of occasions on which the workman had remained on unauthorized absence was also required to be taken into consideration. In this case, apart from remaining unauthorizedly absent without leave, the respondent had been charged with indiscipline at the work place. He not only was found guilty of remaining unauthorizedly absent but also guilty of misbehaviour with his superiors, leaving place of work early without permission and without leave, signing the muster for showing presence although he was absent. 16. Forfeiture of 50% back wages, in our opinion, thus, was not an adequate punishment. In a case of this nature, he should have been awarded some punishment in lieu of the order of dismissal and ....