JUDGMENT:- By this Writ Petition filed under Articles 226 and 227 of the Constitution of India the petitioner/employer has challenged concurrent judgments of Labour Court and Industrial Court granting relief of reinstatement with full back wages to respondent No.1 employee. This Court has on 26/10/2005 while issuing rule in the matter, granted stay only to back wages and consequently respondent No.1 has been reinstated in December. 2005. 2. Advocate Mehadia for the petitioner states that respondent No.1 was working on contract basis and was being paid Rs.450/- per month and as such her termination could not have been held to be retrenchment under Section 25-F of the Industrial Disputes Act. It is further argued that merely because the provisions of Section 25-F are found to be violated, relief of reinstatement with full back wages could not have been granted. He also invites attention to judgment of Hon'ble Apex Court in case of Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. - (2007) 1 SCC 408 : [2007 ALL SCR 174] in support of his contention. Lastly it is argued that the Labour Court could not have granted full back wages because in the present matter, there is no plea of absence of gainful employment and also there is no evidence adduced by present respondent No.1 to show that she was not gainfully employed. Advocate Mehadia argued that burden was upon respondent No.1 to show her entitlement to back wages and as that burden has not been discharged, grant of full back wages cannot be sustained. 3. Advocate Joshi on the other hand contends that entitlement of present respondent No.1 to reinstatement was not questioned before the Labour Court or even before Industrial Court in revision. He contends that the finding of fact that respondent No.1 rendered 240 days continuous service in preceding 12 months prior to her termination cannot be reopened in present writ petition and as such the provisions of Section 25-F are definitely violated. He argued that the alleged employment of respondent No.1 on contract basis is not established as no such contract has been placed on record. He invites attention to judgment of Division Bench of this Court in case of M.S.R.T.C. Vs. He argued that the alleged employment of respondent No.1 on contract basis is not established as no such contract has been placed on record. He invites attention to judgment of Division Bench of this Court in case of M.S.R.T.C. Vs. Kishore Kondiram Jagade & others - 2005(4) Mh.L.J. 798 particularly paragraph 15 thereof to show that engagement of present respondent No.1 on daily wages cannot be said to be a back door entry. He further states that if such a question was to be raised. it ought to have been raised specifically before Labour Court to enable respondent No.1 to lead appropriate evidence in that respect. He also relies upon other Division Bench judgment of this Court reported at 2008(3) Mh.L.J. 743 : [2008(5) ALL MR 260] - Taranjitsingh I. Bagga Vs. M.S.R.T.C., Amravati to show that merely because there is no plea or proof of absence of gainful employment, back wages cannot be declined. 4. In reply, Advocate Mehadia points out that even appointment order of present respondent No.1 shows that she was to get Rs.15/- per day and, therefore, it was contractual appointment. He further states that Division Bench's judgment in case of Taranjitsingh [2008(5) ALL MR 260] (cited supra) is not applicable to cases where there is retrenchment or termination and said judgment is applicable where the punishment of dismissal is inflicted after departmental enquiry and Court found that misconduct has not been established. He also argues that reference to provisions of Clause 49 of 1956 settlement by Labour Court in present situation is misconceived because said clause is applicable only to those employees who enter service as per scheme of General Standing Order No.503. 5. The engagement of present respondent on daily wages of Rs.15/- per day is not in dispute. If the petitioner wanted to show that it was on contract basis i.e. respondent No.1 was contractor and not an employee, burden was upon them to prove it by producing the contract duly executed between the parties. The record does not show that any such contract has been filed. The witness examined by petitioner also could not point out any such contract. In this circumstance, the contention that respondent No.1 was employed on contract basis cannot be accepted. 6. In M.S.R.T.C. Vs. The record does not show that any such contract has been filed. The witness examined by petitioner also could not point out any such contract. In this circumstance, the contention that respondent No.1 was employed on contract basis cannot be accepted. 6. In M.S.R.T.C. Vs. Kishor Kondiram's case (cited supra) the Division Bench of this Court in paragraph 15 has considered the contention of Advocate representing present petitioner and said contention was about absence of relationship of employer and employee on the ground that employees were not appointed by following procedure as laid down in General Standing Order No.503. The Division Bench has reproduced the relevant clause No.4 of G.S.O.- 503 and thereafter has concluded as under: ...... Thus these two provisos speak about the contingencies when the list of the selected candidates is not available with the Corporation. Further it is to be noted that Clause-5 speaks about the Committee which shall recommend the candidates. So far as the class-IV candidates are concerned, sub-clause (c) of clause-5 states that such Selection Committee shall be "Divisional Selection Committee" and Divisional Controller is the head of the said Division and is equally the competent authority to appoint. This shows that where there is an immediate necessity and no person from the approved list is available a purely temporary appointment may be made by the competent authority pending consultation with the Selection Committee. Therefore, reading the Standing Order, it becomes clear that the Divisional Controller of the Division had such authority to appoint the said persons. Here also the case made out by the Corporation is that the helpers who were carrying out the work of sweeping have refused to carry out the said work, and therefore the Complainants and the other employees represented by the Union were employed. Therefore, this employment was in view of the provisos aforesaid (Provisos to Clause-4). It was for the competent authority to carry out the consultation with the Selection Authority, as provided in the Clause A of the Standing Order No.503. and that is not the job of the employees. It is not the case of the Corporation that such consultation was carried out by the competent authority at any point of time since 1980 to 1992 and the said Selection Committee has refused these candidates. The Corporation is aware of these aspects of the matter. and that is not the job of the employees. It is not the case of the Corporation that such consultation was carried out by the competent authority at any point of time since 1980 to 1992 and the said Selection Committee has refused these candidates. The Corporation is aware of these aspects of the matter. Therefore, basically we do not agree with the submission of the learned counsel that the appointments of these employees were not in accordance with the General Standing Order. What we find is that, that the appointment of these candidates was in accordance with the Standing Order No.503, more specifically Clauses-3, 4 and 5 of the said Standing Order, as discussed above, wherein the power to hire the services of temporaries is given to the appointing authority and so far as Class-IV is concerned it was the Divisional Controller who had such authority. However, there was lapse of getting their services duly regularized through the Selection Committee and it is the lapse on the part of the appointing authority. For that purpose the employees cannot be blamed. Therefore we have to interfere that the appointments of the Complainants and the employees represented by the Union were made as per the Standing order.." These observations, therefore, clearly show that the stand that there was no employer-employee relationship or then present respondent No.1 did not enter in service through any recognised channel ought to have been raised by the petitioner specifically before Labour Court. Having not raised that stand and having thus denied the opportunity to present respondent No.1 to prove otherwise, I find that defence on this line cannot be allowed to be raised for the first time before this Court. The provisions of GSO-503 permit competent authority to engage employees on daily wages depending upon exigencies and hence mere fact that respondent No.1 is/was working on daily wages cannot be held to mean that she entered service through back door. 7. The other judgment i.e. Taranjitsingh I. Bagga Vs, M.S.R.T.C" Amravati [2008(5) ALL MR 260] (supra) of this Court on which reliance has been placed by Advocate Joshi considers entitlement of delinquent employees to back wages. The said entitlement has been considered in the light of observations made by the Hon 'ble Apex Court in its judgment reported at (2007)2 SCC 433 J.K, Synthetics Ltd, Vs, K. P, Agrawal. The said entitlement has been considered in the light of observations made by the Hon 'ble Apex Court in its judgment reported at (2007)2 SCC 433 J.K, Synthetics Ltd, Vs, K. P, Agrawal. The relevant observations are extracted by Hon'ble Maharashtra State Road Transport Corporation Vs. Ramabai Vijay Shende Division Bench in paragraph 4 of that judgment. After considering its earlier judgments. Hon 'ble Apex Court in case of J.K. Synthetics Ltd. Vs. K. P. Agrawal has observed that those cases where back wages were awarded related to termination/retrenchment which was held to be illegal and invalid for non-compliance of statutory requirements or related to cases where the Court found that the termination was motivated or constituted victimization. Those decisions are found to have no application to cases where the dismissal or removal of employee was by way of punishment for misconduct after departmental enquiry and the Court confirms the findings of his involvement in misconduct but only interferes with the punishment viewing it as excessive and awards lesser punishment resulting in the reinstatement of employee. It is in this background that provisions of Section Il-A of the Industrial Disputes Act are considered and the observations are made which are accepted by the Division Bench. In case of Taranjitsingh I. Bagga Vs. M.S.R.T.C., Amravati (supra). the employee/appellant was serving as conductor and he was dismissed after holding departmental enquiry. The Labour Court as well as Industrial Court found that he was not given opportunity to cross-examine the prosecution witnesses and then the matter came up before learned Single Judge. The learned Single Judge relied upon tile judgment of Hon'ble Apex Court in case of J. K. Synthetics Vs. K. P. Agrawal and in case of Kendriya Vidyalaya Sangathan & another Vs. S. C. Sharma - [(2005)2 see 363] and found award of back wages to be unsustainable. This application of mind in the light of these two precedents has been examined by this Court and it found that observations in paragraphs 19 and 20 in case of J. K. Synthetic Vs. K. P. Agrawal (supra) were not supporting view reached by learned Single Judge. It is in this view of matter this Court considered the issue further and found that enquiry itself was not proper and the enquiry officer closed the defence of employee. Therefore. observations in paragraph 20 in case of judgment of J. K. Synthetic Vs. K. P. Agrawal (supra) were not supporting view reached by learned Single Judge. It is in this view of matter this Court considered the issue further and found that enquiry itself was not proper and the enquiry officer closed the defence of employee. Therefore. observations in paragraph 20 in case of judgment of J. K. Synthetic Vs. K. P. Agrawal were found to be more relevant by the Hon'ble Division Bench. Thereafter in paragraph 8 of said judgment this Court observed that; the Court cannot be oblivious to the fact that an employee, whose services were terminated wrongly had not only to fight for his survival by getting such odd jobs as he can, but also has to fight a battle for getting himself reinstated in service. The Division Bench found that the Court cannot overlook the grim reality of unemployment pervading all strata’s of the society and concluded by holding that it was not in a position to accept that the moment a person is sacked, he would find alternate means for his survival. It has been further observed that in such situation it would be unjust to insist upon a technical requirement of pleading and proof of absence of gainful employment by an employee who is wrongfully dismissed. Thus all these observations by this Court are on the issue as presented to it & in the facts and circumstances of the case before it particularly when the punishment inflicted after departmental enquiry is found to be vitiated. 8. The burden to show that there was no gainful employment is placed by law upon respondent No.1. Here respondent No.1 has not been dismissed after departmental enquiry and her retrenchment is found to be vitiated for failure of Section 25-F of the Industrial Disputes Act. The observations by this Court in the judgment Taranjitsingh I. Bagga Vs. M.S.R.T.C., Amravati [2008(5) ALL MR 260] (supra) therefore has no application in present facts. Though respondent No.1 never pleaded that she had no alternate source of employment, before Labour Court while leading evidence she could have stated that she was without any source of income. In fact she could have also deposed that despite efforts she could not get any alternate employment. Though respondent No.1 never pleaded that she had no alternate source of employment, before Labour Court while leading evidence she could have stated that she was without any source of income. In fact she could have also deposed that despite efforts she could not get any alternate employment. I find it proper to state few of the judgments of the Hon. Apex Court here to point out that earlier law which placed this burden upon employer is no longer valid. 9. A. In AIR 2006 S.C. 3592 : [2006(2) ALL MR (S.C.) 6] "State of Uttar Pradesh Vs. Brijpal Singh", 3 Hon. Judges of Apex Court reiterate the law on the point as under (relevant part):- "11. In the case of State Bank of India Vs. Ram Chandra Dubey and Ors., (2001)1 SCC 73 . this Court held as under: "7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the Question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen." B. Following observations in AIR 2006 S.C. 586: [2006(4) ALL MR (S.C.) 177] "U.P. State Brassware Corpn. Ltd. Vs. Udai Narain Pandey" are also important:- "63. It is not in dispute that the Respondent did not arise any plea in his written statement that he was not gainfully employed during the said period. Ltd. Vs. Udai Narain Pandey" are also important:- "63. It is not in dispute that the Respondent did not arise any plea in his written statement that he was not gainfully employed during the said period. It is now well-settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Indian Evidence Act or the provisions analogous thereto such a plea should be raised by the workman." In Kendriya Vidyalaya Sangathan (supra) this Court held: " ... When the Question of determining the entitlement of a person to back-wages is concerned the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard the employer can bring on record materials to rebut the claim. In the instant case the respondent had neither pleaded nor placed any material in that regard."- (See also Allahabad Jal Sansthan (supra) para 6)" C. In AIR 2007 S.C. 519 : [2007(1) ALL MR 918 (S.C.)] "Muir Mills Unit of N. T. C. (U. P.) Ltd. Vs. Swayam Prakash Srivastava" , following observations also reveal the legal position:- "44. We are also of the view that the award of the Labour Court is perverse as it had directed ~rant of back wages without giving any finding on the gainful employment of respondent No. 1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of respondent No.1 was in any manner stigmatic. The decision in the case of MP State Electricity Board Vs. Jarina Bee (Smt.) (supra) this court held that payment of full back wages was not the natural consequence of setting aside an order of reinstatement. In the instant case though the termination was as far back as in 1983 the Industrial Adjudicator has not given any finding on unemployment. This Court in a recent case of State of Punjab Vs. Bhagwan Singh. (2002) 9 SCC 636 has held that even if the termination order of the probationer refers to the performance being 'not satisfactory' such an order cannot be said to be stigmatic and the termination would be valid." 10. This Court in a recent case of State of Punjab Vs. Bhagwan Singh. (2002) 9 SCC 636 has held that even if the termination order of the probationer refers to the performance being 'not satisfactory' such an order cannot be said to be stigmatic and the termination would be valid." 10. It may also be noticed here that attention of this Court was not invited to all these bindings precedents and it was not required to consider the question of burden in the matter while deciding Taranjitsingh I. Bagga Vs. M.S.R.T.C., Amravati [2008(5) ALL MR 260] (supra). In present case, there is neither a plea of absence of gainful employment nor there is evidence of respondent No.1 that she had no such gainful employment. Her service period was also little more than three years only. Therefore grant of full back wages cannot be sustained. In the circumstance, judgment dated 23/4/2002 delivered by Labour Court, Chandrapur in Complaint (ULP) No.15 of 1999 is modified and the direction to pay full back wages to present respondent No.1 given therein is only quashed and set aside. 11. Writ Petition is thus partly allowed. Rule made absolute accordingly. However, in the circumstance of the case, there shall be no order as to costs. Ordered accordingly.