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iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person (2013) 10 SCC 324

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and cross examination, which is only delaying the matter.

6.15. Lastly, he submits that the workmen having clearly and categorically pleaded in the claim statement that they were not gainfully employed, it was for the employer to have led evidence about their alleged gainfully employment at the initial stage itself, since the respondent was aware of the stand of the workmen that they were not gainfully employed. The employer has been delaying the proceedings only to frustrate the workmen. The conduct of the employer does not require any equitable consideration at the hands of this Court as considered in the order under review and therefore, the review petition is required to be allowed.

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11.1. The contention of Sri.M.R.C.Ravi, learned Senior Counsel for the employer is that on account of there being a reverse burden of proof on the employer to establish that the workmen are gainfully employed, it is required for the workmen to lead evidence by entering the witness box. It would be required for the workmen to enter the witness box and lead evidence. In this regard, he relies upon the decision in Sushil Kumar's case and he contends that the onus of proof is on the workmen initially which would shift to the employer to show that the workmen is not gainfully employed.

13.2. The valuable right vested in the employer comes with an important duty and obligation on part of the employer to lead evidence at the earliest on the aspect of the gainful employment of the workmen.

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13.3. If no averment to the effect that the workman was not gainfully employed is made in the claim statement, then unless a demand is made in relation thereto the employer is not required to lead evidence as regards the workman being gainfully employed or not. In such a situation even if the matter was posted for arguments, if there is a demand made by the workman during arguments, then the employer has to be given an opportunity to lead evidence in regard thereto.