ORDER
A.M. Sapre, J.
1. The decision rendered in this petition shall also govern disposal of other connected writ petitions being W.P. Nos. 7, 8, 9, 11, 12 and 13 of 2003, as they arise out of a common order.
2. Having heard the learned Counsel for the petitioner and having perused the record of the case, I find no merit in the writ and hence, it merits dismissal in limine.
3. It is a writ under Article 227 of the Constitution of India, It seeks to assail an award dated 28-10-2002, passed by Labour Court, Khandwa in Case No. 20 of 2001, whereby the Labour Court has been pleased to answer the reference made under Section 10 of the Industrial Disputes Act in favour of respondent by directing his reinstatement in service with full back wages.
4. I concur with all the factual findings recorded by the Labour Court while answering the reference in respondent’s favour. As observed supra, consequent upon the termination of respondent from service, an industrial reference under Section 10 of the Act was made to Labour Court to decide the legality of the termination order. Parties led evidence. It was, however, concluded on facts and evidence that respondent has worked continuously for more than 240 days in one calendar year, that no charge-sheet or any inquiry was held prior to his termination, that no retrenchment compensation was paid prior to impugned termination, and that it was a case of dismissal without any basis or charge.
5. Learned Counsel for the petitioner was unable to point out to me any mistake of law or fact in the impugned award, in so far as the aforementioned findings of facts were concerned. These findings are the only findings which need to be rendered on facts and evidence. Indeed, in order to attract the protection of Labour laws, these are the only issues which need to be examined on facts on both sides. As observed supra, if the termination of an employee is based on no inquiry, no charge and not by way of punishment, then it becomes a case of illegal retrenchment. If an employee has worked for more than 240 days on the calendar year then he is entitled to have the
protection of Labour Laws provided the employer is an Industry subjected to Labour Laws.
6. Learned Counsel for the petitioner contended that no order for payment of backwages could be given. I do not agree to this submission, as it has no merit. Firstly, once the termination is held to be bad in law then directions to pay back wages is a natural consequence and has to follow. It is only when the employer (as in this case petitioner) is able to show and prove that terminated employee was working for gains even after termination, the order for payment of backwages will not be passed.
7. The burden to prove that employee was working for gains after termination lies on the employer. In the absence of any evidence not tendered, the direction to pay backwages has to follow. It is, however, necessary for the employee to State on oath that he remained unemployed after the termination of his service. In this case, the petitioner failed to lead any evidence on this issue against the respondent and on the other hand, the respondent did say that he remained unemployed. In view of this, the direction to pay backwages can not be said to be illegal of unreasonable once it was held that termination is bad in law.
8. It is not in dispute that petitioner – a Mandi – a creature of statute, is an Industry and subjected to Labour Laws. An Industrial Reference was thus, validly made to Labour Court for adjudication of termination order. It has categorically been found on facts that respondent has been rendering his services for more than a year continuously and hence, has acquired a status to take shelter of Labour Laws. Such finding being findings of fact can not be assailed again on facts in writ under Article 227 of Constitution of India. Even otherwise, there is nothing to assail either on facts or in law.
9. Petition fails and is dismissed in limine.
