JUDGMENT : ( 1. ) THE petitioner was employed in the Bhilai Steel Plant from September 1958 in different capacities and from 4-12-1967 as Time keeper, Grade II. During his continuance as Time Keeper, Grade II, a charge-sheet Annexure -A dated 24-12-1968 was given to him alleging that he was in unauthorized occupation of a Companys quarter which had been allotted by the Company to one Durga Prasad Mishra, also an employee of the Company; and that the petitioner gave false information to justify his unauthorised occupation of the Companys quarter. There was no dispute that the quarter had been allotted to Durga Prasad Mishra, that the petitioner was staying in the same with the consent of the said Durga Prasad Mishra; and that the allotment of that quarter by the Company in favour of Durga prasad Mishra continued at all material times. The petitioner denied the allegations made against him in the charge sheet in his reply Annexure-B dated 2-1-1969 contending that Durga Prasad Mishra was the petitioners relative; and that the quarter continued to be in the occupation of Durga prasad Mishra, the Companys allottee, with whose permission the petitioner was living with him in that quarter. ( 2. ) THE management was apparently not satisfied with this reply and a domestic enquiry was made into these charges. At that enquiry, the said durga Prasad Mishra was examined as a witness and his statement is annexure -C dated 1-2-1969. In that statement Durga Prasad Mishra expressly stated that he continued to live in that quarter allotted to him; that the same was not sublet to the petitioner and that the petitioner was living with him with his consent. Admittedly, Durga Prasad Mishra never made any grievance against the petitioner and in fact it was with his permission that the petitioner continued to live with him in that quarter. As earlier stated, the quarter continued to be allotted to Durga Prasad Mishra who was entitled to occupy the same and consequently the Company bad no right to its vacant possession during the continuance of allotment in Mishras favour. This has never been in dispute. All the same, it was held that the charges were proved against the petitioner and ultimately by order Annexure-K dated 22-4-1971 the petitioners service as Time Keeper, Grade II, was terminated. ( 3. This has never been in dispute. All the same, it was held that the charges were proved against the petitioner and ultimately by order Annexure-K dated 22-4-1971 the petitioners service as Time Keeper, Grade II, was terminated. ( 3. ) THE petitioner assailed the termination of his service, before the labour Court, Durg. By its order Annexure -M dated 21-5 1975, the Labour court upheld the managements view that unauthorized occupation of the said quarter by the petitioner had been proved However, it further held, rejecting the managements contention, that the petitioner on being directed to vacate that quarter by a written notice, had moved out of the same as required by the managements notice. Consequently, the Labour Court held that the petitioner was entitled to reinstatement in service without payment of any back wages. Both sides being partly aggrieved went to the Industrial court in revision against the Labour Courts order. The Industrial Court allowed the managements revision by order Annexure-O dated 4-8-1975 and consequently dismissed the petitioners revision by its order Annexure-P of the same date. The main order of the Industrial Court is Annexure-O. The industrial Court did not expressly reverse the Labour Courts finding that the petitioner had vacated the quarter as required by a written notice of the management. All the same, it ultimately held that the petitioner had been in unauthorized occupation of the quarter and was not entitled to any relief. Accordingly, the reinstatement granted by the Labour Court was also set aside. The petitioner has consequently come to this Court by this petition under Article 226 of the Constitution. ( 4. ) SHRI Gulab Gupta, learned counsel for the petitioner, contends that the allegation against the petitioner did not amount to any misconduct under the standing Orders on account of which there was no occasion to inflict any punishment upon the petitioner. On this basis he prays for grant of a writ to quash the orders of termination (Annexure K); of the Labour Court (Annexure -M); and the Industrial Court (Annexures-O and P); and claims reinstatement of the petitioner with full back wages. Shri A. P. Tare, learned counsel for respondent No. 1, contends that there is no ground to grant any relief to the petitioner. Having heard learned counsel, we are of the opinion that this petition must be allowed. ( 5. Shri A. P. Tare, learned counsel for respondent No. 1, contends that there is no ground to grant any relief to the petitioner. Having heard learned counsel, we are of the opinion that this petition must be allowed. ( 5. ) IT is common ground before us that the only provisions in the Standing Orders available to support the managements case of proved misconduct are sub-clauses (iv) and (xviii) of clause 29 of the Standing Orders applicable to the establishment. Clause 29 lays down the specific acts and omissions which amount to misconduct. Sub clauses (iv) and (xviii) with which alone we are concerned, read as follows : - " (iv) Giving false information regarding ones name, fathers name, age, qualifications or previous service etc. at the time of employment. (xviii) Unauthorised use of Companys quarters or land. " We have, therefore, to examine whether the allegations made against the petitioner, if proved, amount to misconduct under either or both of these subclauses. There is no dispute that sub-clause (iv) has no application since the allegation of giving false information attributed to the petitioner is not with regard to any particular furnished at the time of employment but relates only to his explanation for living in that quarter allotted to Durga Prasad Mishra. The only argument of Shri Tare on behalf of respondent No. 1 is that the petitioners misconduct falls under sub clause (xviii ). ( 6. ) THE allegation against the petitioner is that he was living in a companys quarter allotted to Durga Prasad Mishra. Admittedly it was so. However, it has to be remembered that this was with the express consent of mishra, the Companys allottee, and at a time when the allotment being in mishras favour, the quarter had ceased to be available to the Company for its use in any other manner. Mishra never had any grievance against the petitioner and on the contrary supported the petitioners version. On these undisputed facts it is difficult to appreciate how the act of the petitioner living in that quarter with Mishras consent and with him could amount to unauthorised use of Companys quarter, the only misconduct relied on to support termination of petitioners service. Mishra never had any grievance against the petitioner and on the contrary supported the petitioners version. On these undisputed facts it is difficult to appreciate how the act of the petitioner living in that quarter with Mishras consent and with him could amount to unauthorised use of Companys quarter, the only misconduct relied on to support termination of petitioners service. It has not been shown nor was it the managements plea that it was a case of sub-letting or that there was any prohibition against any employee living with any other employee to whom a Companys quarter was allotted. That being so, the plain and unambiguous language of sub-clause (xviii) cannot by any stretch of imagination be construed to take within its ambit an act like the one alleged against the petitioner. It is, therefore, clear that taken even at its face value, the allegation levelled against the petitioner and the facts admitted or found proved did not amount to the misconduct laid down in sub-clause (xviii ). The termination of petitioners service was, therefore, illegal and unjustified. ( 7. ) THE Labour Court as well as the Industrial Court totally missed this crucial aspect and their orders disclose a patent error which permits the issue of a writ under Article 226 of the Constitution to quash the impugned orders. There can be no doubt that the petitioner was dismissed from service without there being any case of misconduct alleged or proved against him. It is, therefore, obvious that the "termination of service being illegal and unjustified, the petitioner is entitled to be reinstated in service as Time keeper, Grade II. ( 8. ) THE only question surviving now is regarding back wages. Before deciding the same, it would be profitable to summarize the principles governing the award of back wages while directing reinstatement of an industrial employee who has been fully exonerated of the charges which occasioned his dismissal from service. In Western India Automobile Association v. The industrial Tribunal, Bombay and others, (A I R 1949 F C 111 at p. 120.) the Federal Court, while authoritatively laying down that an Industrial Tribunal had jurisdiction to grant reinstatement of an industrial employee wrongfully dismissed from service, also pointed out the real content of the relief of reinstatement in such a case. The relevant extract from the decision is as follows : - "this relief of reinstatement is on the same footing as a relief of restitution. Restitution can be granted in integrum in certain cases. All that is required is that the ex employee should be restored to his previous position so far as capacity, status and emoluments are concerned and there is nothing extraordinary in such restoration being ordered when considered necessary in the interests of peaceful settlement of industrial disputes. Adjudication does not, in our opinion, mean adjudication according to the strict law of master and servant. " (Page 120)It was thus laid down that the relief of reinstatement to be effective should restore the ex employee to his initial position in every respect including emoluments. In other words, the payment of full back wages, at least by necessary implication, stated to be included in the effective relief of reinstatement. Later, their Lordships of the Supreme Court have reiterated the above principle. In M/s Kesoram Cotton Mills Ltd. v. Gangadhar and others, (A IR 1964 S C 708.)while dealing with the case of a workman fully exonerated after the domestic enquiry, it was held that such a workman was entitled to reinstatement with full back wages according to the law ordinarily applicable to industrial employees. The relevant portions of the decision are as follows :-"ordinarily, the law is that a workman may be suspended pending enquiry and disciplinary action. If after the inquiry the misconduct is proved the workman is dismissed and is not entitled to any wages for the suspension period; but if the inquiry results in the reinstatement of the workman he is entitled to full wages for the suspension period also along with reinstatement,. . . . . . . . . . . . . . . . . . . . . . . . . It follows therefore that if a workman is fully exonerated after the enquiry, he would remain in the service of the employer and would be entitled to his full wages during the period of his suspension also. . . . . . . . . . . . . . . . . . . . . . . . It follows therefore that if a workman is fully exonerated after the enquiry, he would remain in the service of the employer and would be entitled to his full wages during the period of his suspension also. " (Page 714)In Workmen of Uttar Pradesh State Electricity Board and another v. Upper ganges Valley Electricity Supply Company and others, (1966 (1) L L J 730 (S C ).) their Lordships held that an employee whose services were wrongfully terminated was entitled to full back wages for the relevant period and not only half as awarded by the industrial Tribunal without any cogent ground being made out for deduction of the remaining half back wages. In M/s Hindustan Steel Ltd. v. The presiding Officer, Labour Court, Orissa and others, (AIR 1977 SC31.) the award of full back wages by the Labour Court while granting reinstatement was assailed on behalf of the employer on the ground that the Labour Court had not satisfied itself that the employees had remained unemployed during the relevant period and further that they had taken all reasonable steps to mitigate their losses consequent on the retrenchment. The Labour Court had found that it was not proved that the employee had any alternative employment. The Supreme court, while rejecting the contention of the employer, also observed that the question of mitigation of loss for deprivation of employment did not appear to have been raised before the Labour Court. This decision does indicate that in the event of setting aside wrongful termination of service and granting reinstatement, the grant of full back wages also should ordinarily follow unless the employer has raised the question of "mitigation of loss for deprivation of employment" and also proved it in the first Court. Thereafter, m/s Cox and Kings (Agents) Ltd. v. Their Workmen and others. (AIR 1977 S 0 1666. ") also appears to support that view. One of the arguments advanced on behalf of the employer was that the onus of proving that they had not obtained alternative employment elsewhere after termination of services was on the workmen so that on failing to discharge that onus they were not entitled to full back wages on being granted reinstatement. ") also appears to support that view. One of the arguments advanced on behalf of the employer was that the onus of proving that they had not obtained alternative employment elsewhere after termination of services was on the workmen so that on failing to discharge that onus they were not entitled to full back wages on being granted reinstatement. After stating this argument in para 34, their Lordships in para 35 of the decision rejected the same as being without any merit. However, in para 36 their Lordships then proceeded to add that evidence having been led by both sides on this point and a clear finding thereon having been recorded. the question of onus had lost its importance. It may safely be inferred from this decision, more so in the background of the earlier decisions of the Supreme Court, that their Lordships were not inclined to accept the argument that the initial burden lies on the employee to plead and prove his attempt and failure to mitigate the loss resulting to him as a consequence of the termination of his service. ( 9. ) A learned Single Judge of the Madras High Court in United bleachers (Private) Ltd. , Mettupalayam v. Labour Court, Coimbatore and others, (1964 (II) L L J 156.) took the view that even where the employer had taken the plea that the dismissed employee had been employed and was earning elsewhere during the relevant period, the same unless proved and the amount of the alleged earning quantified, could not be taken of while directing payment of full back wages along with reinstatement. A Division Bench of the Allahabad High court took the same view in Postal Seals Industrial Co-operative Society Ltd. , aligarh v. Labour Court, II, Lucknow and others, (1971 (1) L L J 327. ). S. N. Dwivedi, J. , (as he then was) speaking for the Division Bench, examined this question in the light of some of the earlier decisions and summarized the position as follows:- "it will appear from these cases that an employee whose service is found to be illegally terminated, is entitled to full back wages normally. . . . . . . . . . . . . . . . . . . . . The strict law of master and servant or common law regarding mitigation of damages cannot be made the whole basis for moulding discretion of the Labour Court: Western India Automobile Association v. Industrial Tribunal, Bombay. " "if the normal rule in a case like the one before us is to award full back wages it will follow that the employer will bear the burden of establishing the countervailing circumstances if he seeks to neutralise the normal rule. It is for him to plead and prove to the satisfaction of the labour Court that the workmen have made some earnings during the period of their enforced idleness or they have wilfully refused to seek or accept alternative jobs. It is sot for the workmen to plead and prove, that they have tried to minimise the loss during their enforced idleness. If the employer pleads that the workmen are not entitled to full wages as they have wilfully failed to seek or accept alternative jobs, it will be for the workmen then to offer due explanation as to why they did not seek or accept alternative jobs or that they did seek alternative jobs but failed. " (Para 28) ( 10. ) THE view of this Court also has been the same. A Division Bench in The Madhya Pradesh State Road Transport Corporation v. The Industrial court, M. P. Indore and others, (M. P. No. 59 of 1967, decided on the 3rd February 1969.) held as follows :- "the law is now well settled that when an order of dismissal from service of an employee is set aside as illegal, the employee is normally entitled to full back wages and it is for the employer to plead and prove circumstances which may disentitle the employee to the benefit of full back wages;" On the basis of this principle, the Division Bench applied the normal rule of awarding full back wages since the employer had not pleaded and proved any circumstance to justify a departure from the normal rule. It was, therefore, clearly the view of that Division Bench that the onus lies on the employer to plead and prove circumstances justifying any deduction from the full back wages and if that is not done, then the normal rule of awarding full back wages, while granting reinstatement to an employee on termination of his service being held to be illegal and unjustified, must be applied. ( 11. ) WE do not find anything in any of the above Supreme Court decisions to justify a departure from the view taken by the earlier Division Bench of this Court while summarizing the law on this point as above. No decision of this Court taking a contrary view has been cited before us. In fact, the aforesaid, discussion would show that the legal position summarized as above by the earlier Division Bench continued to be good law being in conformity with decisions of the Federal Court and Supreme Court. We are also of the opinion that the above quoted extract from the Allahabad decision correctly summarizes the legal position on the question of onus in such a case and, accordingly, we express our respectful agreement with the same. What is elaborately stated by S. N. Dwivedi J. (as he then was) in the allahabad decision is implicit in the above Division Beach decision of this court. ( 12. ) STRICTLY speaking in all such cases, including those wherein a deduction from full back wages is permitted, the rule applied is the same. The deduction itself is an application of the same rule and it is not correct to call it a deviation from the normal rule. Such deduction is allowed to avoid any unjust enrichment of the employee. The principle requires only full restitution without any unjust enrichment to the employee, and in working out the same, the employer is entitled to deduct the benefit accrued to the employee during that period. It is for this reason that the employer is permitted to plead and prove circumstances justifying the deduction It also follows from this, that the onus must, therefore, be on the employer who claims the benefit of deduction to ensure proper restitution and to avoid unjust enrichment of the employee. It is for this reason that the employer is permitted to plead and prove circumstances justifying the deduction It also follows from this, that the onus must, therefore, be on the employer who claims the benefit of deduction to ensure proper restitution and to avoid unjust enrichment of the employee. For this reason, where there is no evidence and the question has to be decided on the basis of onus, the employer must fail and no deduction from the full back wages can be made. Viewed at from this angle also, the conclusion reached is the same. We have considered this question at some length because of the impression given that the position in law on this point is some what obscure. ( 13. ) THE question of grant of back wages to the petitioner has to be decided in the light of the above principle. Admittedly, the employer has not taken the requisite plea and has not proved any circumstance to claim any deduction from the amount of full back wages. It is, however, urged by shri A. P. Tare on behalf of the employer that the legal position was a bit obscure because of which the employer believed that the onus was really on the employee. The employee also did not take such a stand in his petition even though back wages were refused to him by the Labour Court without assigning any reason, while granting reinstatement. It was not disputed on behalf of the petitioner that it can be reasonably assumed that the petitioner must have earned easily an amount equal to half the full back wages during the several years after termination of his service. It was, therefore, urged by Shri Gulab Gupta that the proper course in the present case would be to award only half back wages to the petitioner instead of sending back the matter for enquiry to the Labour Court. No doubt this is a reasonable suggestion and would avoid any further delay in adjudication of this dispute. In view of the peculiar circumstances of this case and the stand taken at the hearing before us, we are of the opinion that the award of half back wages along with reinstatement would be proper exercise of discretion on our part while quashing the termination of the petitioners service. In view of the peculiar circumstances of this case and the stand taken at the hearing before us, we are of the opinion that the award of half back wages along with reinstatement would be proper exercise of discretion on our part while quashing the termination of the petitioners service. We would, however, add that this conclusion on the facts of the present case and in view of the stand taken before us, is not to be construed as an authority permitting a deduction from the full back wages without there being any pleading and proof by the employer justifying that deduction. ( 14. ) THIS petition is, accordingly, allowed in the above manner. The impugned orders, Annexures K, M, O and P are quashed. The dismissal of the petitioner from the service of respondent No. 1 is set aside and he is directed to be reinstated as Time Keeper, Grade II, with half back wages for the period between the date of his dismissal and reinstatement. The petitioner shall also get his costs from respondent No. 1. Counsels fee rs. 200, if certified. The outstanding amount of the security deposit shall be refunded to the petitioner. Petition allowed.