JUDGMENT
Swatanter Kumar, J.
1. The Division Bench while admitting the writ petition to hearing had directed that the matter in regard to stay be listed before the Single Bench on 2.12.1997. The matter was adjourned from that date to 28.1.1998 for hearing with the consent for the parties and as the matter involved a very short controversy for determination the writ petition itself was heard on merits on that date.
2. Respondent No. 2 Radhey Shyam was working as a Beldar from 1.3.1989 to 4.7.1992, allegedly with some notional breaks. On 4.7.1992 his services were terminated because of non-availability of any work at the sight. Being aggrieved from this order/action of the petitioner Maharshi Dayanand University, Rohtak, the said respondent raised an industrial dispute. He filed a statement of claim before the Presiding Officer, Labour Court, Rohtak, alleging that his termination was contrary to law and that he had put in more than 240 days of service during the last year as provided under the Industrial Disputes Act and his services could not be terminated. The termination was illegal and was violative of provisions of Sections 25-F, 25-G and Chapter 5-A of the Industrial Disputes Act. In these circumstances the workman had prayed for setting aside of the order of termination, reinstatement with continuity of service and full back wages.
3. In the written statement, which was filed in reply to the statement of claim by the employer, it was stated that the earlier the workman had filed a suit and when the interim injunction was not granted he had withdrawn the same. On merits, it was stated that his services were engaged as Beldar on a stop-gap arrangement and he has no right to any post and his services have been rightly dispensed with. The parties led evidence. The learned Labour Court vide its award dated 14.3.1997 granted the following relief to the petitioner:-
“As a net result of my findings on issue No. 1 above, the reference is accepted and I hold the workman is entitled to be reinstated on his previous post with continuity of service and 75% of back wages. The reference is answered and returned accordingly.”
4. It is the award which has been assailed in the present writ petition. At the outset the learned counsel appearing for the petitioner employer fairly conceded that he would not be able to challenge successfully the relief of reinstatement granted to the workman in the facts and circumstances of this case. However, his thrust of argument is that learned Labour Court could and ought not to have granted 75% back wages in the facts and circumstances of this case. In order to substantiate his arguments, the learned counsel stated that the workman has not claimed such a relief even in the claim petition.
5. This submission of the learned counsel for the petitioner is not well founded. As already mentioned in the claim petition filed by the workman, a definite prayer was made that full back wages with the relief of reinstatement and continuity of service be granted to the petitioner. It is also not disputed before me that this relief was also averred by the workman in his examination-in-chief. In the reply filed on behalf of the employer, no such objection was raised that the petitioner was not entitled to the back wages for any reason including that he was gainfully employed during the relevant period. No suggestion was put to the workman in his cross-examination that he was gainfully employed during the relevant period and was not entitled to the back wages. Having missed the opportunity available to it, the employer cannot be permitted to take advantage of its own mistake and error. The workman has a primary onus to discharge for raising a claim of back wages. Once this preliminary onus is discharged by making a proper pleading and the statement before the Court of competent jurisdiction, then onus shifts on the management to prove the contrary. If the employer intends to deny and contest the relief in regard to back wages, it must discharge the onus by adducing definite evidence and the burden on the employer is not a lighter one. In the present case, the employer has failed to discharge its onus. The case, of the employer lacks in pleading. Ineffective cross-examination of the worker as well as having failed to adduce cogent and reasonable evidence to refute the claim of the workman for grant of back wages.
6. The learned Labour Court had categorically held that it is an admitted case of the parties that workmen was appointed by the management as Beldar on 1.3.1989 and he worked upto 4.7.1992. Thus, he had completed more than 240 days of service as detailed in Ex.W-1 to Ex.W-42. During this period no complaint was raised against the workman and his work was found satisfactory. MW-1 Shri S.N. Rathi who was examined on behalf of the University also stated that the persons who were appointed along with the workman are continuing and the works with the management are still continuing and other workmen have been appointed after terminating the services of Radhey Shyam. To the same effect was the statement of WW-1 Shri Mohinder Kumar. This definite evidence showed that the termination of the workman was illegal and was not justifiable. Once it was so held and rightly so, the workman would be entitled to the back wages. In fact the learned Labour Court has already restricted the claim of the workman to 75% of the back wages in the facts and circumstances of the case. This by itself covers the possibility of the workman trying to earn his livelihood during the prolonged period of termination which has been held to be illegal.
7. The finding of the Labour Court can no way be termed as unjustified and not sustainable. The Labour Court has not fallen in any error in granting the relief to the petitioner. The workman is satisfied with the award. In fact if anybody could have a valid grievance it would be the workman and not the management.
8. For the reasons aforestated, I find no merit in this writ petition and the same is dismissed. There shall be no order as to costs.