TMI Blog2008 (12) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. (vi) Signing the muster for showing presence on 1.12.1983 on next day. (vii) Disobeying order of Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 employed or not, the Appellate Authority while holding that the provisions of Shops and Establishments Act were not applicable at Patan where the said footwear shop was being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Counsel appearing on behalf of the respondent, on the other hand, would support the impugned judgments contending that in terms of the provisions of the Industrial Employment Standing Orders Act, 1946 only a fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. {See also Allahabad Jal Sansthan v. Daya Shankar Rai (2005)IILLJ847SC } 14. Furthermore, some materials had been brought on record to show that the respondent was gainfully employed. The evidence adduced on behalf of the appellant in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 furthermore the question as to whether the respondent was entitled to the full back wages or not should have been considered on the basis of the materials brought on record by the parties. 17. We may notice that in U.P. SRTC v. Mitthu Singh (200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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