( 1 ) THE present is an appeal under Clause 15 of the Letters Patent. The appellant being aggrieved by order dated 17. 03. 1998 passed in Special Civil Application No. 616 of 1985 whereunder the learned Single Judge has directed reinstatement of the petitioner with appellant no. 2 and also directed the appellants to pay 50% of the back wages for the period between 08. 12. 1984 till 31. 08. 1990, is before this Court. ( 2 ) THE summary of facts necessary for disposal of the present appeal are that the present respondent-employee was appointed as a clerk in the Weaving Department by appellant no. 2 on probation on 31. 12. 1978. On 08. 08. 1980 he was transferred to Costing Department. On 01. 09. 1982 he was again transferred to Spinning Department. It is submitted at Bar that the employees transfer was challenged and he could secure interim order in his favour, but later on that interim order was vacated. However, the respondent-employee did not report for duty and remained absent without any permission and thereafter he made an application for post facto sanction of leave for the period between 02. 10. 1982 to 30. 10. 1983. The said application was rejected by the appellant no. 2 and leave was not sanctioned. On 08. 12. 1984 by the impugned action the appellant informed the present respondent/ original petitioner that he has lost his lien on the post held by him as a result of the unauthorised absence, therefore, nothing was required to be done. Being aggrieved by letter dated 08. 12. 1984 the petitioner filed Special Civil Application No. 616 of 1985 which was allowed by the order impugned. ( 3 ) MR. SHUKLA, learned counsel for the appellants submitted that the question of alternative remedy was raised by them and as alternative remedy of submitting the dispute under the Bombay Industrial Relations Act was available to the original petitioner the learned Single Judge cold not interfere in the matter. True it is, that in the pleadings raised by the present appellants the question was so raised, but from the order passed by the learned Single Judge it does not appear that the said pleadings were pressed before the learned Single Judge. We are unable to find even a single word relating to the alternative remedy. ( 4 ) THOUGH Mr. We are unable to find even a single word relating to the alternative remedy. ( 4 ) THOUGH Mr. Shukla submits that the question was vehemently argued but in view of the settled legal position we are of the opinion that such question would be deemed not to have been argued unless an affidavit is filed by the counsel who argued the matter before the learned Single Judge that he did argue the question but escaped the attention of the learned Single Judge while deciding the matter. ( 5 ) IT was next contended that appellant no. 2 has become sick and thereafter Board of Industrial and Financial Reconstruction (BIFR) has taken up the proceedings. A sanctioned scheme was implemented and as such an order for reinstatement could not have been made in favour of the original petitioner. It is further submitted that with effect from 01. 04. 2003 appellant no. 2 is completely closed and it has become non viable unit and all its workers have been relieved. It is further submitted that the present was not a case where the High Court should have directed payment of 50% of back wages especially in view of the fact that the appellants were challenging the alleged non employment by submitting that the original petitioner was gainfully employed. ( 6 ) LEARNED counsel for the respondents on the other hand submitted that the fact that the original petitioner was gainfully employed has not been disputed by the original petitioner. It is submitted by him that since after 31. 08. 1990 the present respondent-workman is gainfully employed and such submission was made before the learned Single Judge. According to him 50% back wages were awarded to him with effect from the date of termination upto 31. 08. 1990, i. e. the date since which the respondent is in gainful employment. It is also submitted that as the petitioner is already employed the order of reinstatement with effect from 31. 08. 1990 may be quashed but for the purposes of back wages with effect from 08. 12. 1984 till 31. 08. 1990 order of reinstatement would be a must, otherwise the original petitioner would not be entitled to 50% back wages. ( 7 ) MR. 08. 1990 may be quashed but for the purposes of back wages with effect from 08. 12. 1984 till 31. 08. 1990 order of reinstatement would be a must, otherwise the original petitioner would not be entitled to 50% back wages. ( 7 ) MR. SHUKLA, learned counsel for the appellants submitted that on the date when the order of termination was issued the order was absolutely justified but for the judgement which came to be delivered subsequently in the matter of D. K. Yadav Vs. J. M. A. Industries Ltd. , reported in (1993) 3 SCC 259 . His submission is that if because of the subsequent declaration of law by the Supreme Court a legal action taken by party becomes bad then in such a case back wages could not be awarded. ( 8 ) IN our considered opinion the Supreme Court in the matter of D. K. Yadav (supra) has simply observed that principles of natural justice are required to be read in the Standing Order also especially when the Standing Orders are likely to lead to civil consequence. The Supreme Court observed that a person before his lien is terminated ought to have been given an opportunity of hearing and explaining his conduct, because on such an opportunity he can always explain as to what persuaded him or compelled him rather constrained him not to join services in accordance with the service conditions. If the Supreme Court has explained the law in its true spirit then any order which is contrary to the judgement of the Supreme Court will have to be taken to be bad from the date when it was passed and not from the date the Supreme Court delivered its judgement. ( 9 ) UNDER the circumstances we must hold that the order under which the petitioner was held to have lost his lien was a bad order. ( 10 ) ONCE it is held that the order terminating the lien is bad the consequences would be reinstatement with or without back wages. In the matter of the Managing Director, U. P. Warehousing Corporation and others, Vs. Vijay Narayan Vajpayee, reported in A. I. R. 1980 SC 840 the Supreme Court was considering the question regarding the award of back wages. In the matter of the Managing Director, U. P. Warehousing Corporation and others, Vs. Vijay Narayan Vajpayee, reported in A. I. R. 1980 SC 840 the Supreme Court was considering the question regarding the award of back wages. In the said case the Supreme Court did observe that whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back wages, would be a question of fact depending on evidence to be produced before the Tribunal. In the said matter the Supreme Court observed that if after the termination of the employment the workman/ employee was gainfully employed elsewhere it would be one of the important factors for consideration and whether fullest back wages should be allowed or not. In the present matter the respondent workman had clearly stated that since after 31. 08. 1990 he is gainfully employed and the learned Single Judge did not award any back wages subsequent to 31. 08. 1990. ( 11 ) MR. SHUKLA submitted that in their additional affidavit before the learned Single Judge it was submitted that the original petitioner was gainfully employed since after his termination and was getting better benefits from another employer. On being asked that what further details about further employment have been given in the additional affidavit, Mr. Shukla submitted that in view of the allegations made by the employer the respondent-original petitioner was obliged to produce records. His submission is that as the records have not been produced an adverse inference must be drawn against the petitioner/ workman. ( 12 ) THE argument is strange. If a simple allegation without any details or particulars is made in relation to the employment and the allegation itself is denied on oath then nothing would be required to be done by the employee. An employer cannot be allowed to say without any details or particulars that the workman was in due employment, therefore, he should not get anything. It would almost be impossible for the employee to give negative evidence that he was not employed elsewhere. Once the employee says that he was not employed then burden would shift upon the employer to prove the fact that the employee was gainfully employed. In the present matter the employee fairly conceded before the learned Single Judge that since after 31. 08. 1990 he was gainfully employed. Once the employee says that he was not employed then burden would shift upon the employer to prove the fact that the employee was gainfully employed. In the present matter the employee fairly conceded before the learned Single Judge that since after 31. 08. 1990 he was gainfully employed. If that be so, then for rest of the period between 08. 12. 1984 till 31. 08. 1990 the burden was upon the appellants to prove that the workman/ employee was gainfully employed. In the present matter the employer did not do anything, but for making a statement that the employee was gainfully employed. ( 13 ) PLACING reliance upon a Division Bench judgement of this Court in the matter of Abad Dairy Vs. Manjibhai Dhanjibhai, reported in 2000 (3) G. L. H. 409 it was submitted that before directing reinstatement and awarding back wages the financial position of the company/ employer should always be taken into consideration. ( 14 ) THE Division Bench while making observations in para 31 of the said judgement placed reliance upon the judgement of the Supreme Court in the matter of Surendra Kumar Verma Vs. the Central Government Industrial Tribunal-cum-Labour Court, New Delhi and another, reported in 1961 SC 422. The Supreme Court in the said matter has observed that there may be exceptional circumstances which make it impossible or wholly inequitable to grant reinstatement with full back wages. Taking clue from these observations it is sought to be contended that the reinstatement could not be ordered nor back wages could be awarded. In the present matter as the respondent workman is giving up right of his reinstatement with effect from 31. 08. 1990 we need not pass any order in relation to reinstatement. So far as award of back wages is concerned the Supreme Court in the said judgement of Surendra Kumar Verma (supra) has observed that full back wages may not be awarded. In the present matter the learned Single Judge taking into consideration the totality of the circumstances has observed that 50% back wages could certainly be awarded. Even otherwise in the matter of D. K. Yadav (supra) while setting aside termination the Supreme Court had awarded 50% back wages. In the present matter the learned Single Judge taking into consideration the totality of the circumstances has observed that 50% back wages could certainly be awarded. Even otherwise in the matter of D. K. Yadav (supra) while setting aside termination the Supreme Court had awarded 50% back wages. Taking lead from the judgement of the Supreme Court in the matter of D. K. Yadav (supra) we would be justified in observing that the learned Single Judge was justified in awarding 50% back wages. So far as the closure of the unit is concerned in our opinion it would not cut any ice in favour of the appellants because we are not directing reinstatement or payment of any wages since after 01. 09. 1990. In view of the aforesaid we do not find any reason to interfere with the judgement of the learned Single Judge. The Appeal is dismissed. No order as to cost. .