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4. The challenge to the judgment and order of the Courts below in relation to the direction for payment of 50% of the back wages is on four grounds. Firstly, that the impugned order is contrary to the well established principle of law that the direction for payment of full back wages should follow as consequence of direction for reinstatement pursuant to the finding that termination of the service was illegal. In that regard, reliance is sought to be placed in the decision of this Court in the matter of Mohammadsha Ganishah Paiel and Anr. v. Mastanbaug Consumers' Co-op. Wholesale and Retail Stores Ltd. and Anr. 1998 (I) C.L.R. 1205 Secondly, that the Courts below ought to have considered that the employer had failed to establish that the petitioner was gainfully employed elsewhere after the termination of his service by the respondent No. 1 and that itself was a justification for direction of payment of full back wages. Reliance is placed in that regard in the decisions in the matter of Manorama Verma (Smt.) v. State of Bihar and Ors. 1994 Supp. (3) SCC 671 Chhaganlal Prahladrai Singhania v. The Maharashtra State Co-operative Marketing Federation Ltd. 1992 (I) C.L.R. 332 and State of Madhya Pradesh and Ors. v. Chhote Minya and Ors. 1997 (II) C.L.R. 236. Thirdly, that the Courts below failed to consider that the burden of proof regarding gainful employment was entirely upon the respondent No. 1 employer and the respondent No. 1 had failed to discharge the same. Mere impression of the employee about the alleged occupation of the employee cannot be construed as sufficient material to discharge the said burden. In that regard, reliance is placed in the decisions in the matter of Metro Tyres Ltd. v. Presiding Officer, Labour Court, Ludhiana &, Ors. 1997 (II) C.L.SR. 1201 Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Ors. and M/s. Burn Standard Co, Ltd. and Ors. v. Tarun Kumar Chakraborty 1998 (78) F.L.R. 714 (Cal. H. C). Fourthly, it was sought to be contended that the Courts below erred in holding that the petitioner was under obligation to show as to how he had maintained himself after the termination of his service by the respondent No. 1. It was the contention of the learned Advocate for the petitioner that the Courts below failed to appreciate that the petitioner had clearly stated that he was engaged in the agricultural work, even though the burden of proof as to how he survived during the period of unemployment was not upon the petitioner, and, therefore, the Courts below ought to have directed payment of entire back wages.

9. Applying the said law to the facts of the case and on perusal of the impugned judgments as well as other materials placed on record, it cannot be disputed that the same nowhere discloses that the employer having established the fact that the employee was gainfully employed elsewhere after the termination of his service by the respondent No. 1. Undoubtedly, an attempt was made to show that the petitioner was engaged as a Taxi Driver and was carrying the business of hiring a taxi. However, apart from a mere allegation in that regard neither any documentary material nor any cogent oral evidence was placed on record by the respondent No. 1 in support of the said allegation, and neither the Labour Court nor the Industrial Court has been able to arrive at any finding in support of the said allegation by the employer. In the circumstances, it cannot be disputed, as rightly submitted by the learned Advocate for the petitioner, that the respondent No. 1 had failed to discharge its burden to establish that the petitioner was gainfully employed during the time he was out of the employment of respondent No. 1.

10. The questions then arise are whether, pursuant to the failure by the employer to establish that the employee was gainfully employed during the time he was out of the employment of the respondent No. 1 would it by itself justify the direction for payment of the entire back wages, and whether the Courts below have acted illegally in not ordering the same? The Labour Court in its judgment while observing that the efforts on the part of the employer did not prove fruitful to establish that the petitioner was gainfully employed elsewhere, has held that it was within the personal knowledge of the petitioner as to how he was maintaining himself during the relevant period and as to whether he had tried to find out any job elsewhere and the petitioner had not disclosed any efforts having been made by him in that regard. The said finding has not been disturbed by the Industrial Court. Besides, the records placed by the petitioner along with this petition and more particularly the testimony of the petitioner himself disclose that there was a clear admission on the part of the petitioner in the examination-in-chief itself that he was getting Rs. 1,500/- to 1,700/- approximately from the agriculture at his native place and that is how he was maintaining his family during the relevant period and further that he had not tried to secure any alternative job elsewhere after the termination of the service by the respondent No. 1. Relevant portion of his testimony reads thus :- "1 am getting Rs. 1,500/- to 1,700/- approximate Income from the agriculture at my native place thereby I had to maintain my family till the date. I have not tried to secure an alternative job anywhere after my termination." It was sought to be contended on behalf of the petitioner that there was no obligation upon the petitioner to disclose about his source of income which would have sufficient to maintain himself and his family during the time when he was out of the employment of the respondent No. 1 and further that merely because he was getting some meager amount to keep his body and soul together even by way of begging, that would not be a justification to deny back wages in its entirety to the petitioner, and in that regard, attention was drawn to the decision of the Apex Court in Rajinder Kumar Kindra's case (supra).

11. In Rajinder Kumar Kindra's case (supra), the Apex Court had observed that "if the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for back wages." Bare reading of the above ruling discloses that the said ruling was in relation to the point as to what could not be said to be gainful employment to justify denial of the back wages in its entirety. The decision is not on the point that when there is source of income available to the employee during the time when he is out of the employment, even then the same cannot be considered for the purpose of denial of the back wages in its entirety. The Apex Court was dealing with the point relating to the discharge of burden by the employer on the point of gainful employment, and in that regard, the said ruling was given. The binding nature of the decision is to be understood from what is decided in the matter.