JUDGMENT Amareshwar Sahay, J.-The petitioner, i.e. the Management of Coal Mines Area Development Authority, Dhanbad, has filed this writ petition challenging the award dated 27.7.2005 passed by the Presiding Officer, Labour Court, Dhanbad in Reference Case No. 2 of 1991, by which the Presiding Officer has held the termination of the services of the Respondent Taj Khan, Road Roller Driver is not justified and then directed the Management to reinstate the concerned workman with 25% of the back wages from 1.6.1989 till the date of his reinstatement and also to pay the salary for the months of April and May 1989 to the workman. 2. The following dispute was referred by the State Government to the Labour Court, Dhanbad for adjudication:- "Whether termination of services of Sri Taj Khan, Roller Driver by the Management of Coal Mines Area Development Authority, Dhanbad is justified? If not, what relief he is entitled to? 3. On the basis of the said reference, the Labour Court, registered the case as Reference Case No. 2/1991 and, thereafter, issued notices to the Management and the workmen's representative who, on receipt thereof, filed their written statements and rejoinders. In the written statement (Annexure-2), the employer/writ petitioner took stand that it is a statutory body under the provisions of Bihar Coal Mines Area Development Authority Act, 1986. The Government of Bihar through the Public Works Department (PWD) entrusted the work of widening, strengthening and replacement of roads, bridges and culverts between Dhanbad-Sindri Road, Rajganj-Jamdiha Road, Putkee-Patheridih Road and transferred a sum of Rs. 17.27 crores for the said purpose to the Authority. In the written statement, the employer, i.e. the Coal Mining Area Development Authority took the plea that the Coal Mining Area Development Authority is a statutory body under the provisions of Bihar Coal Mines Area Development Authority Act, 1986. The Government of Bihar through Public Works Department (PWD) entrusted the work of widening, strengthening and replacement of roads, bridges and culverts between Dhanbad-Sindri Road, Rajganj-Jamdiha Road, Putki-Pathardih Road vide letter no. 101/80-5665 dated 5.12.1987 of the Joint Secretary, Road Construction Department (PWD), Bihar, Patna and transferred a sum of Rs. 17.27 crores for the said purpose to the Coal Mining Area Development Authority. The construction work was started by the Coal. Mining Area Development Authority and some persons were appointed and some machinery like Road Roller etc. were purchased for the same. 17.27 crores for the said purpose to the Coal Mining Area Development Authority. The construction work was started by the Coal. Mining Area Development Authority and some persons were appointed and some machinery like Road Roller etc. were purchased for the same. The concerned workman Taj Khan was appointed as Road Roller Driver for the said work. Subsequently, the said construction work of roads, bridges and culverts was taken back by the Government of Bihar, Public Works Department by letter dated 4.2.1989 and accordingly, the instrument of construction work of roads, bridges and culverts as referred to above was transferred back to PWD, Government of Bihar and all the machineries were returned back w.e.f. 1.4.1989. The services of the workmen employed in connection with the said construction work including the services of the concerned workman Taj Khan was handed over to PWD. The termination of service of the concerned workman Taj Khan resulted as the work of construction of roads, bridges and culverts etc. which was initially instructed to the Authority was taken back and entrusted to PWD of Government of Bihar. The services of the concerned workman Taj Khan was terminated due to the close of the construction work entrusted to Coal Mining Area Development Authority by PWD, Government of Bihar. The aforesaid construction work was one time job and it was not a permanent work and, therefore, the termination of the services of the concerned workman Taj Khan was fully justified and his termination was covered under the provision of Clause (bb) of sub-section (oo) of Section 2 of the Industrial Disputes Act, 1947. 4. On the other hand, the concerned workman by filing his written statement took the stand that he was employed by issue of an office order dated 3.3.1988 of the Secretary, Coal Mining Area Development Authority, Dhanbad and since then he was in continuance service. He worked for a period of one and half years but his services were terminated w.e.f. 2.6.1989 illegally and arbitrarily without following the mandatory requirements of Sections 25F and 25N of the Industrial Dispute Act, 1947 and, therefore his termination of service was bad in law. 5. In the reference proceeding one witness was examined on behalf of the Management, whereas two witnesses were examined on behalf of the workman. Both the parties also produced several documentary evidence in support of their respective cases. 6. 5. In the reference proceeding one witness was examined on behalf of the Management, whereas two witnesses were examined on behalf of the workman. Both the parties also produced several documentary evidence in support of their respective cases. 6. From perusal of the impugned award, it appears that the Labour Court came to the conclusion that the concerned workman worked for one and half years continuously prior to the transfer of his service to the PWD Department but without complying the mandatory provisions of Section 25F of the Industrial Disputes Act, he was illegally terminated from service. The Labour Court further held that the concerned workman worked after 10.4.1989 in PWD Department till 1.6.1989 and for those two months, i.e. April and May, 1989 the workman was neither paid his salary by the PWD Department nor by the Coal Mining Area Development Authority. Accordingly, by the impugned award the Labour Court held the termination of the services of the workman to be illegal and unjustified and, thereby, directed the petitioner to reinstate him in service with 25% of back wages till the date of his reinstatement and also to pay his salary for the months of April and May 1989. 7. The impugned award of the Labour Court has been challenged by the Management of Coal Mining Area Development Authority, Dhanbad on the ground that the Labour Court has acted illegally beyond the terms of reference in passing the impugned award and further that the findings arrived at by the Labour Court are neither supported by the materials and evidence on record nor supported by any law and, therefore, the same is liable to be quashed. 8. Mr. Rajiv Ranjan, learned counsel for the petitioner submitted that since the construction work of the roads, bridges and culverts, which was initially entrusted to the Coal Mining Area Development Authority but subsequently, was taken back by PWD Department, Government of Bihar and, therefore, the services of the concerned workman Taj Khan was not required with the Authority. The concerned workman was appointed as Road Roller Driver to operate the Road Roller, which was purchased by the Authority. for execution of the construction work of roads, bridges and culverts etc. The concerned workman was appointed as Road Roller Driver to operate the Road Roller, which was purchased by the Authority. for execution of the construction work of roads, bridges and culverts etc. initially entrusted to it but, thereafter, the machineries were returned back to the PWD Department alongwith employees, who were appointed for execution of the said work and, therefore, the termination of the services of the concerned workman was perfectly justified. 9. Having heard the parties and from perusal of the materials on record, I find that the Labour Court on appreciation of evidence on record particularly the document Ext.M-1, held that the State Government did not give any direction to the Authority for transfer of the services of the employees appointed by the Authority for the implementation of the project work. The Labour Court further held that the management of the Authority wrongly incorporated (sic-interpreted ?) the Government's order. As per Ext.M-1, the Authority was only directed to send the accounts/amount received, the equipments purchased from the said amount spent and the amount unspent along with other documents to the Executive Engineer, PWD Department. The Labour Court further held after perusing Ext.-W-1 that the PWD returned back the services of the concerned workman Taj Khan with others to the Authority with absentee report treating him as regular staff of the Authority and, therefore, the act of the Authority in not permitting the concerned workman to do the job after receipt of Ext.-W-1 amounted to termination of the services of the concerned workman. The concerned workman was not appointed in the PWD Department rather he was appointed by the Authority and, therefore, the transfer of service of the concerned workman Taj Khan to the PWD Department was neither legal nor justified since there was no such direction of the State Government. 10. Therefore, it appears that the Industrial Tribunal has passed an order for reinstatement of the concerned workman in service on the basis of the evidence and materials on record. I do not find any reason to interfere with the findings of the Tribunal that the termination of the service of the concerned workman Taj Khan by the petitioner was unjustified. The order and direction passed by the Tribunal for reinstatement of the concerned workman in service as well as for payment of the salary for two months, i.e. April and May 1"989 are hereby affirmed. 11. The order and direction passed by the Tribunal for reinstatement of the concerned workman in service as well as for payment of the salary for two months, i.e. April and May 1"989 are hereby affirmed. 11. So far as the grant of 25% of back wages to the concerned workman is concerned, the same is required to be interfered with in view of the law settled in this regard. The payment of back wages having a discretionary element involved in it has to be dealt with, in the fats and circumstances of the each case. For question of determining the entitlement of a person to back wages, 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 the materials to rebut the claim. In the present case, the concerned workman has neither pleaded nor brought on record any material to show that he was not gainfully employed anywhere. The Supreme Court in the case of "J.K. Synthetics Ltd. vs. K.P. Agrawal and Another, reported in (2007)2 SCC 433 " has held that it is necessary for employee to plead that he was not gainfully employed from the date of termination. He has to assert at least on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. If this burden of proof is discharged by the employee then the burden will shift to the employer to rebut the evidence of the employee in that regard. The same view was taken by the Supreme Court earlier also in the case of "U.P. State Brassware Corpn. Ltd. vs. Uday Narain Pandey reported in (2006)1 SCC 479 ". 12. In view of the fact that as earlier noticed above, the employee failed to bring any material on record or even to plead that he was not gainfully employed anywhere after the date of termination and, therefore, the grant of 25% of back wages to the concerned workman by the Tribunal cannot be sustained in law. Consequently, that part of the impugned award whereby the Tribunal has granted 25% of back wages to the concerned workman is hereby set aside. Accordingly, this writ petition is dismissed with above modification in the award. Consequently, that part of the impugned award whereby the Tribunal has granted 25% of back wages to the concerned workman is hereby set aside. Accordingly, this writ petition is dismissed with above modification in the award. However, in the facts and circumstances of the case, there shall be no order as to cost.