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7) Secondly, the School Tribunal, according Mr. Patel, committed a grave error in law in awarding 60% back wages in the absence of pleading and proof on the part of respondent No.1

- employee that, in the intervening period, the respondent No. 1 was not gainfully employed. Mr. Patel would urge that what accentuates the situation in the instant case is that the School Tribunal was fully alive to the proposition of law that it was for the employee to plead that she was not gainfully employed and no affidavit that the respondent No. 1 had not been gainfully employed was placed on record. Therefore, the impugned order 22-WPL-3693-20.DOC deserves to be interfered with in exercise of writ jurisdiction, urged Mr. Patel.

9) On the second count of challenge, the learned Counsel for the respondent No. 1 countered the submissions that there was 22-WPL-3693-20.DOC no assertion on the part of the respondent No. 1 that she was not gainfully employed during the currency of the termination.

Attention of the Court was invited to an affidavit filed on behalf of the respondent No. 1 seeking an amendment in the Appeal Memo so as to incorporate the prayer of reinstatement in service. In the said affidavit, a categorical statement was made that, after passing of the impugned order, the respondent No. 1 had not been serving elsewhere and earning therefrom. In the affidavit- in-reply to the said application, it was denied by the petitioner that the respondent No. 1 was not serving elsewhere. Therefore, the petitioner can not be permitted to take advantage of a stray observation in the impugned judgment that there was no affidavit of respondent No. 1 not being gainfully employed, which is not factually correct.

19) On the issue of grant of 60% backwages, Mr. Patel would urge that the School Tribunal after having noted the party on whom onus lay and absence of evidence to show that the respondent No. 1 was not gainfully employed, could not have awarded backwages. A very strong reliance was placed by Mr. Patel on the pronouncement of Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) And Others3.

20) In the case of Deepali (supra) a two Judge Bench of the Supreme Court had, after reviewing the earlier precedents including the judgments of the Supreme Court in the cases of Hindustan Tin Works (P) Ltd. Vs. Employees 4, and Surendra Kumar Verma Vs. Central Govt. Industrial Tribunal-cum-Labour 3 (2013) 10 SCC 324 4 (1979) 2 SCC 80 22-WPL-3693-20.DOC Court5, the three Judge Bench judgments, had laid down the following principles:-

38.3 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 who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.