JUDGMENT Hon’ble V.K. Shukla, J.—Petitioner had been performing and discharging duties as clerk and was posted at Jeevani Mandi, Agra Branch of the Bank. The petitioner remained absent from duty without leave since 12.11.1991. He was asked vide notice dated 13.5.1992 by the respondent-Bank to join the services within 30 days from the date of issuance of the said notice. The petitioner reported duty on 11.6.1992 within 30 days. The petitioner again remained absent without leave from the Bank w.e.f. 21.6.1992. A notice dated 8.9.1992 was issued to the petitioner, directing him to report on duty within 30 days from the date of publication of the notice and submit an explanation for unauthorized absence, a copy of which has been filed as Annexure 1 to the writ petition. This notice is alleged to have been published on the Notice board of the Bank on 9.9.1992. The said notice was served on the petitioner on 14.9.1992 by a Registered post. The petitioner reported on duty well within the period of 30 days from 14.9.1992. Instead of permitting the petitioner to join the duty, the Branch Manager issued a communication dated 12.10.1992 to the petitioner mentioning therein that, since the joining report of the petitioner was beyond 30 days from the date of publication of its notice on the Notice Board of the Bank, he would not be allowed to join and also the reason of his absence was unacceptable, a copy of which has been filed as Annexure 3 to the writ petition. Subsequently, vide order dated 28.11.1992 passed by the General Manager of the respondent-Bank, the petitioner deemed to have voluntarily retired from the service of the Bank, in view of the Clause 17 of the Vth Bipartite Settlement dated 10.4.1989. 2. The petitioner being aggrieved by the order dated 28.11.1992 passed by the General Manager, Vijaya Bank, Bangalore (Annexure 5 to the writ petition) raised an industrial dispute before the Assistant Labour Commissioner (Central) under the Central Industrial Dispute Act, 1947. Since conciliation proceedings failed, the Central Government vide its order dated 25.1.1990 made a reference under Section 10 of the Industrial Disputes Act for adjudication of the dispute, as to whether the termination of service of the petitioner vide order dated 28.11.1992 w.e.f. 8.10.1992 was legal and justified, and if not, to what relief the petitioner was entitled to. Since conciliation proceedings failed, the Central Government vide its order dated 25.1.1990 made a reference under Section 10 of the Industrial Disputes Act for adjudication of the dispute, as to whether the termination of service of the petitioner vide order dated 28.11.1992 w.e.f. 8.10.1992 was legal and justified, and if not, to what relief the petitioner was entitled to. The Central Industrial Tribunal-cum-Labour Court, Kanpur after hearing the parties to the dispute passed its award dated 23.4.2001, which was published on 27.4.2001. 3. Said award had been subject matter of challenge in present writ petition and this Court on 18th March, 2005 concluded that the award dated 23.4.2001 as published on 27.4.2001 was unsustainable and the same was quashed and writ petition was allowed. After the said writ petition had been allowed, directives were issued for reinstatement of petitioner on the post held by him, with continuity in service and further directives were issued that the petitioner would be entitled to other consequential benefits in accordance with law. 4. Against the said judgment of this Court, rendered in present writ petition, Special Leave to Appeal; was filed before Hon’ble Apex Court and the same was numbered as Civil Appeal No. 3676 of 2006, General Manager, Vijaya Bank and another v. Pramod Kumar Gupta, reported in 2006 (4) ESC 426 (SC), and therein, as far as order of reinstatement is concerned, qua the same no interference was made by Hon’ble Apex Court, but as back wages had been awarded as a natural consequences without considering other aspects of the matter, matter has been remanded back to be decided afresh limited to the question of back wages. Operative portion of the order passed by Hon’ble Apex Court is being quoted below : “In our opinion, the period of 30 days has to be reckoned only from the date of service of the notice namely, on 14.9.1992. If that date is taken into consideration, the respondent has joined the duty well within 30 days namely, on 12.10.1992. Dr. Padia further submitted that the Tribunal was wrongly persuaded by the oral testimony of the witness on the basis of which lacked any basis in the pleadings or prove any form of document. According to him, the respondent was not gainfully employed and that the said finding is totally perverse. Dr. Padia further submitted that the Tribunal was wrongly persuaded by the oral testimony of the witness on the basis of which lacked any basis in the pleadings or prove any form of document. According to him, the respondent was not gainfully employed and that the said finding is totally perverse. It submitted that the bank only prevented the respondent from joining duty and that the respondent is not at fault and therefore, he is entitled to full back wages. We, therefore, remit the matter to the High Court to consider the question of payment of back wages for the period in question. We request the High Court to consider the matter afresh on the question of back wages only. The appellant Bank is also free to hold any departmental enquiry against the respondent workman for his absence from duty during the relevant period. Since the matter is remitted to the High Court on the question of back wages only, the respondent will not be entitled for payment of any back wages during the period in question which will depend upon the ultimate order that may be passed by the High Court. The order passed by the High Court ordering reinstatement shall stand. It is submitted by Dr. R.G. Padia, learned senior counsel that the respondent workman has availed some loan from the bank for the purpose of purchasing a residential house. It is also stated that he has committed default in payment of instalments of the said loan to the bank. Since the matter is remitted back to the High Court, he requested this court to direct the bank not to sell the residential house for non-payment of the instalments of the loan availed by him for the purpose of residential house till the High Court takes final decision. The request is accepted." 5. Pursuant to order passed by Hon’ble Apex Court, present writ petition has again been taken up for consideration of grant of back wages. 6. Sri Manu Khare, learned counsel appearing for the petitioner, contended with vehemence that petitioner was not at all gainfully employed and as he was subjected to arbitrary action of respondents and said finding of fact has been upheld by Hon’ble Apex Court, as such full back wages be accorded to petitioner as petitioner was not at all fault as per the finding recorded and affirmed. 7. 7. Sri Ashok Trivedi, learned counsel appearing for the respondent-Bank, on the other hand, contended that there was no pleading on behalf of the petitioner that he was not gainfully employed and there was no evidence on record to show and suggest that petitioner was not gainfully employed, rather on the record, there was unimpeachable testimony of the representative of the bank, which clearly suggested that petitioner was gainfully employed with his brother, who was dealing in share, as such there was no occasion to award any back wages when the order dispensing with the services of petitioner had been questioned after much delay. 8. After respective arguments have been advanced, factual position, which emerges is to the effect that in paragraph 4 of the written statement, which was filed by the workman before the Industrial Tribunal, statement of fact was mentioned that workman could not join his duties in the bank w.e.f. 21.6.1992 due to illness of his wife and some other unavoidable circumstances concerning family affairs. In ground No. 21 (j) of the grounds which he had taken, mention was made that the Bank had neither stated the fact in the notice dated 8.9.1992 that the workman obtained another employment in India nor that the workman had no intention to serve the bank nor had the bank furnished any evidence along with the notice dated 8.9.1992. On pleadings front this was the material before the Industrial Tribunal. 9. Statements of petitioner as well as Sri Vivekanand Hegde are on record. In the statement made before the Industrial Tribunal petitioner had mentioned that he had not performed and discharged duties at any place and on account of the same he absented himself and it was categorically mentioned by him that he was not doing any other business. Statement of Vivekanand Hegde says that he made mention that petitioner was doing share business with his brother. In the same statement he has categorically mentioned that at no point of time any notice was given by him cautioning the workman that as he was doing business with his brother, he would have to face departmental proceedings. The Industrial Court on the basis of the statement of Sri Hegde proceeded to presume that petitioner had been gainfully employed without there being any other evidence in respect of the same. The Industrial Court on the basis of the statement of Sri Hegde proceeded to presume that petitioner had been gainfully employed without there being any other evidence in respect of the same. Before Industrial Court there was evidence against evidence and there was no concrete material on the basis of which finding could have been returned that petitioner was gainfully employed. 10. Hon’ble Apex Court in the case of Allahabad Jal Sansthan v. Daya Shankar Rai and another, 2005 (5) SCC 124 : 2005 (2) ESC 288 (SC), has taken the view that in a case where there was no pleading raised that there was no evidence as to the workman having remained unemployed, and proceeded to accord 50% of the back wages. Paragraphs 6 to 17 of the said judgment being relevant are quoted below : “6. A law in absolute term cannot be laid down as to in which cases, and under what circumstances, full back-wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. It is not in dispute that the Respondent No. 1 herein was appointed on an ad hoc basis; his services were terminated on the ground of a policy-decision, as far back as on 24-1-1987. The Respondent No. 1 had filed a written statement wherein he had not raised any plea that he had been sitting idle or had not obtained any other employment in the interregnum. The learned counsel for the Appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in his evidence, the workman did not say that he continued to remain unemployed. In the instant case, the Respondent herein had been reinstated from 27-2-2001. 7. In Tapan Kumar Bhattacharya (supra), this Court noticed that there was no pleading or evidence as to whether the Respondent therein was employed elsewhere during the long interregnum, and in the fact-situation obtaining therein, the Appellant was directed to pay 50% of the back-wages till the date of reinstatement. 8. 7. In Tapan Kumar Bhattacharya (supra), this Court noticed that there was no pleading or evidence as to whether the Respondent therein was employed elsewhere during the long interregnum, and in the fact-situation obtaining therein, the Appellant was directed to pay 50% of the back-wages till the date of reinstatement. 8. Yet again in Jarina Bee (supra), this Court observed that the award of full back wages was not the natural consequence of an order of reinstatement. 9. In Rahmat Ullah (supra), a Bench of this Court held that as the Respondent therein was out of service since 1990 as an ordinary worker, he must have been working elsewhere to earn his livelihood; and there was no material to show that he was not gainfully employed whereupon, a direction to pay 50% of the back-wages was made. 10. In Ram Ashrey Singh and another v. Ram Bux Singh and others, (2003) 9 SCC 154 , questioning the order of termination after six years was considered to be one of the factors for denying an order of reinstatement with back wages to the workman. In the fact-situation obtaining therein, it was held that ends of justice would be subserved if the Appellants therein were directed to pay a sum of Rs. 35,000/- by way of compensation in addition to what has already been paid. [See also Management of M/s. Sonepat Co-operative Sugar Mills Ltd. v. Ajit Singh] 11. In Haryana State Co-op. Land Dev. Bank v. Neelam, [ 2005 (2) SCALE 434 ], it was held : AIR 2005 SC 1843 : 2005 AIR SCW 1439, Para 18 “It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of Acceptance Sub Silentio........” [See also Manager, R.B.I., Bangalore v. S. Mani and others, 2005 (3) SCALE 202 ] : 2005 AIR SCW 1729 : 2005 AIR - Kant HCR 1063]. 12. A person in certain situation may even be held to be bound by the doctrine of Acceptance Sub Silentio........” [See also Manager, R.B.I., Bangalore v. S. Mani and others, 2005 (3) SCALE 202 ] : 2005 AIR SCW 1729 : 2005 AIR - Kant HCR 1063]. 12. Let us now consider the decisions cited by the learned Counsel for the Respondent No. 1: In Workmen of Subong Tea Estate (supra), whereupon, strong reliance has been placed by the learned counsel for the Respondents, no principle of law has been laid down. The Court merely directed in the fact-situation obtaining therein to reinstate the workmen with full wages. [ AIR 1967 SC 420 ] 13. In M/s. Hindustan Steel Ltd. (supra), this Court again did not lay down any law. A finding of fact was arrived at by the Labour Court that the Respondents had no alternative employment which was not challenged. The only ground which was urged before the High Court was that the Respondents had not proved that they had tried to mitigate their losses during the period of unemployment. The questions which have been raised herein had not been raised therein. The argument was confined only to mitigation of the losses. This Court did not interfere with the discretionary jurisdiction of the High Court in interfering with the award. [ AIR 1977 SC 31 : 1976 Lab IC 1766] 14. In Indian Railway Construction Co. Ltd. (supra), this Court merely stated. [ AIR 2003 SC 1843 : 2003 AIR SCW 1301 : 2003 Lab IC 1440, Para 30] “30. Question then would be how the conflicting interests can be best balanced. By an interim order dated 5-5-2000 the appellant was directed to reinstate the respondent subject to an interim payment of Rs. 3 lakhs towards the back-wages. Direction for reinstatement does not automatically entitle an employee to full back-wages. In Hindustan Tin Works (P) Ltd. v. Employees, a three-Judge Bench of this Court laid down: AIR 1979 SC 75 : 1978 Lab IC 1667 “11. In the very nature of things there cannot be a straitjacket formula for awarding relief of back-wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back-wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. In the very nature of things there cannot be a straitjacket formula for awarding relief of back-wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back-wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp v. Wakefield, 12 AC at p. 179).” 15. In Nicks (India) Tools (supra), this Court again in the fact-situation obtaining therein refused to interfere with the discretionary jurisdiction exercised by the High Court particularly having regard to the fact that it was for the first time before the writ court, such plea was raised by way of additional evidence, which had been rejected. [ AIR 2004 SC 4348 : 2004 AIR SCW 5095 : 2004 Lab IC 3929 : 2004 AIR - Jhar HCR, 2762] 16. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back-wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at. 17. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at. 17. In view of the fact that the Respondent had been reinstated in service and keeping in view the fact that he had not raised any plea or adduced any evidence to the effect that he was remained unemployed throughout from 24.1.1987 to 27.2.2001, we are of the opinion that the interest of justice would be subserved if the Respondent is directed to be paid 50% of the back-wages.” 12. Hon’ble Apex Court in the case of U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479 , has clearly taken the view that in respect of entitlement to back wages, pleading has to be raised by the workman that he was not gainfully employed during the period for which back wages were being claimed, onus was on the workman. In the said case after considering various arguments, Hon’ble Apex Court set aside the order of the Labour Court and the High Court and held that workman was entitled to 25% of the back wages during the aforesaid period. Here, in the present case in the statement filed before the Industrial Court pleading was taken in negative contending therein that it was not at all the case of the employer that petitioner had been gainfully employed somewhere. Before Industrial Court, petitioner has categorically denied that he was gainfully employed and as far as Vivekanand Hegdey is concerned, he has made a mention that petitioner was working with his brother, but nothing beyond the same has been stated or proved. Consequently, in the present case as to award of back wages, no absolute condition can be settled. Relief has to be accorded keeping in view the various facts and circumstances of each case. Here, in the present case, admittedly, petitioner’s services were dispensed with on 28.11.1992; petitioner raised industrial dispute after four years on 1.4.1996 for, setting aside the order treating to have retired from service with effect from 28.11.1992. for this period there is no reasonable explanation coming forward. Petitioner was not entitled to any money towards back wages for this period. Here, in the present case, admittedly, petitioner’s services were dispensed with on 28.11.1992; petitioner raised industrial dispute after four years on 1.4.1996 for, setting aside the order treating to have retired from service with effect from 28.11.1992. for this period there is no reasonable explanation coming forward. Petitioner was not entitled to any money towards back wages for this period. However, for the remaining period amount which has been awarded by way of back wages, in the facts and circumstances of the present case, as the action has been held to be arbitrary and unreasonable and as petitioner has shown his inclination to work thereafter, as such for the period 1.4.1996 to 23.4.2001, petitioner shall be entitled to 50% of the back wages. 13. In view of above direction and observation, question of back wages has been decided. ————