ORDER D.N. Patel, J. 1. Counsel for the petitioners submitted that original petitioner No.1 and petitioner No.4 have expired on 20.3.2004 and 11.5.2004 respectively and, therefore, their legal representatives, as referred to in paragraphs 6 & 7 of the interlocutory application, are to be joined as petitioners. 2. Looking to the facts and circumstances of the case and having heard the learned counsel for the respondents, this interlocutory application is allowed. Legal representatives of original petitioner Nos. 1 and 4 are permitted to be joined as party. Now amendment shall be carried out during the course of the day by red ink. 3. Interlocutory application is allowed and disposed of. C.W.J.C. No. 772 of 1996(R) 4. The present petition has been preferred mainly challenging the award passed by the Central Government Industrial Tribunal No. 1, Dhanbad dated 16th November, 1994 in Reference No.206 to 2010 of 1996 as well as in Reference No. 15 of 1992. The said award is annexed as Annexure-1 to the memo of petition whereby, though petitioners were ordered to be reinstated, no back wages were ordered to be paid to the petitioners and, therefore, for getting the back wages, the present writ petition has been preferred. 5. Counsel for the petitioners submitted that today one interlocutory application being No.503 of 2011 has been allowed whereby the legal representatives of original petitioner Nos.1 and 4 are permitted to be joined as a party. It is submitted by the counsel for the petitioners that for no fault of the original petitioners, they were dismissed from services in August, 1976 and the order of reinstatement was passed on 16th November, 1994; petitioners were not gainfully employed during this period and, therefore, they must be given 100% back wages. It is vehemently submitted by the counsel for the petitioners that this is an error apparent on the face of the record committed by the Industrial Tribunal. Whenever the workmen are not gainfully employed after their dismissal, they ought to have been awarded back wages. This matter has not been appreciated by the Industrial Tribunal, hence to that extent the award passed by the Industrial Tribunal deserves to be quashed and modified and the petitioners may be ordered to be paid the back wages from their date of their dismissal from services till their date of reinstatement. 6. This matter has not been appreciated by the Industrial Tribunal, hence to that extent the award passed by the Industrial Tribunal deserves to be quashed and modified and the petitioners may be ordered to be paid the back wages from their date of their dismissal from services till their date of reinstatement. 6. I have heard the learned counsel for the respondents who has submitted that the petitioners were dismissed from services because of their violent and riotous behaviour. The incident took place on 19th February, 1975 in which three persons were killed and several others were injured. It is also submitted by the counsel for the respondents that workman Deo Nandan Gowala and Fauzdar Singh (whose reference Nos. are 208/90 and 210/90) were also charge-sheeted for their continuous absence without permission and without justifiable cause. The Inquiry Officer was appointed who conducted the inquiry and upon receiving the inquiry officer's report, the petitioners' services were brought to an end in August, 1976. Thereafter, the petitioners filed a writ petition in 1984 because the reference under Section 10 of the Industrial Dispute Act was denied. The writ petition preferred by the dismissed workmen was also dismissed vide order dated 16th April, 1986. Thus, there is gross delay on the part of the petitioners themselves. Therefore also, they were rightly not awarded the back wages by the Industrial Tribunal. It is further submitted by the counsel for the respondents that the workmen raised an industrial dispute in the year 1989. Thus, there is the grossest delay in raising the industrial dispute in 1989, though they were dismissed from services in 1976. In fact, different persons raised industrial dispute on different dates and the reference was made in 1990-92. Counsel for the respondents further submitted that petitioners have failed to prove that after their dismissal, the petitioners were not gainfully employed. Neither in the written statement nor in the depositions before the Industrial Tribunal, the petitioners have stated that they were not gainfully employed and, therefore also, rightly the Industrial Tribunal has not awarded any back wages. Counsel for the respondents relied upon the decisions rendered by the Supreme Court reported in (2006) 1 S.C.C. 479 : (2010) 2 S.C.C. 70 and on the basis of these two judgments, it is submitted that back wages cannot be granted mechanically merely because an order of reinstatement has been passed. Counsel for the respondents relied upon the decisions rendered by the Supreme Court reported in (2006) 1 S.C.C. 479 : (2010) 2 S.C.C. 70 and on the basis of these two judgments, it is submitted that back wages cannot be granted mechanically merely because an order of reinstatement has been passed. Rightly the Industrial Tribunal, therefore, has not awarded the back wages looking to the aforesaid two aspects that there is a gross delay on the part of the petitioners in raising the industrial dispute and secondly, on the ground that the dismissed workmen have never stated in their written statement/statement of claim nor in their deposition that they were not gainfully employed after their dismissal and therefore, this writ petition deserves to be dismissed. 7. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly for the following facts:-- (1) petitioners were charge-sheeted for taking part in a violent and riotous incident on 19th February, 1975. In this incident, three persons were killed and several others were injured. Moreover, workman namely Deo Nandan Gowala and workman Fauzdar Singh (whose reference Nos. 208/90 and 210/90) were also charge-sheeted of a misconduct of remaining continuously absent after the aforesaid incident which was without permission and without any justifiable cause. (ii) It appears that thereafter inquiry was conducted; Inquiry Officer submitted his report and order of dismissal was passed in August, 1976 of all the original petitioners. (iii) It appears that thereafter, an industrial dispute was raised. As no reference was made under Section 10 of the Industrial Disputes Act by the appropriate Government in the year 1984, the writ petition was preferred by the dismissed workmen being C.W.J.C. No. 1037 of 1984(R) which was also dismissed vide order dated 16th April, 1986. (iv) Thus, the dismissed workmen's writ petition was also dismissed and thereafter in the year 1989, again these dismissed workmen raised an industrial dispute and thereafter in the year 1990 and in the year 1992, the aforesaid references were made by the appropriate Government under Section 10 of the Industrial Disputes Act. (v) Thus, it appears that there is delay on the part of the workmen in raising the industrial disputes. Thereafter an award passed by the Industrial Tribunal for reinstatement due to defective inquiry. (v) Thus, it appears that there is delay on the part of the workmen in raising the industrial disputes. Thereafter an award passed by the Industrial Tribunal for reinstatement due to defective inquiry. Now the question left out to be considered in this writ petition by this Court is for what back wages the dismissed workmen are entitled to. (vi) It appears that no error has been committed by the Industrial Tribunal, Dhanbad in not granting any back wages to the dismissed workmen mainly for the reason that there is a long delay on the part of the dismissed workmen in raising the industrial dispute. Workmen were dismissed from services in August, 1976 and they raised the industrial dispute in 1989 and thereafter and ultimately reference under Section 10 of the Industrial Disputes Act was raised in the year 1990 and in the year 1992. Thus, after 14 to 16 years, the industrial dispute was raised from the date of dismissal of the petitioners from their services. Therefore, rightly the Industrial Tribunal has not awarded any back wages, even though reinstatement order has been passed. (vii) Moreover, it has been held by the Hon'ble Supreme Court in the case reported in (2006) 1 S.C.C. 479 in paragraphs 22 and 45 as under:-- 22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. 45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence. (Emphasis supplied) It has also been held in paragraphs 18 and 61 of the aforesaid judgments as under:-- 18. It is not disputed that the respondent did not plead that he after his purported retrenchment was wholly unemployed. 61. It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is not disputed that the respondent did not plead that he after his purported retrenchment was wholly unemployed. 61. It is not in dispute that the respondent did not raise 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 Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman. (Emphasis supplied) (viii) Thus, as per the aforesaid decision, burden of proof is upon a workman that he was unemployed after his dismissal. In the aforesaid decision also, the workmen had not pleaded after their retrenchment that they were wholly unemployed. In the facts of the present case also, nowhere in the statement of claim the workmen had mentioned that they were not gainfully employed after their dismissal. Moreover, in the depositions of the dismissed workmen also, they have not stated before the Industrial Tribunal, Dhanbad that they were not gainfully employed after their dismissal. In view of the above evidence, rightly the Industrial Tribunal, Dhanbad had not awarded the back wages to the workmen. (ix) It has been held by the Hon'ble Supreme Court in the case reported in (2010) 2 S.C.C. 70 in para 15 as under:-- 15. From the above observations it becomes apparent that payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry. (Emphasis supplied) (x) Thus, it has been held by the Hon'ble Supreme Court that whenever there is an order of reinstatement of the workman, no mechanical order of full back wages can be passed. The workmen have to prove that after their dismissal, they were not gainfully employed. (Emphasis supplied) (x) Thus, it has been held by the Hon'ble Supreme Court that whenever there is an order of reinstatement of the workman, no mechanical order of full back wages can be passed. The workmen have to prove that after their dismissal, they were not gainfully employed. (xi) In view of these facts, namely there is a long delay on the part of the workmen in raising the industrial dispute and also looking to the facts that the dismissed workmen have neither in their statement of claim nor in their depositions stated that they were not gainfully employed after their dismissal, no error has been committed by the Industrial Tribunal, Dhanbad in not awarding the back wages. As a cumulative effect of the facts and reasons and the judicial pronouncement discussed above, there is no substance in the writ petition. Hence, it is, hereby dismissed. Petition dismissed.