JUDGMENT : Indrajit Mahanty, J. - The present appeal has been filed by the appellant (M/s. Hotel Hans Coco Palms) challenging the judgment dated 25.9.2012 passed by the learned Single Judge in W.P. (C) No. 17293 of 2010. Mr. Pattnaik, learned counsel for the appellant submits that the parties had been directed to seek for Alternative Dispute Resolution pursuant to the order of the learned S.D.J.M., Puri dated 22.6.2013. 2. It appears from the submissions made in course of hearing today that such settlement of dispute failed since the offer of the appellant was not accepted by the workman (respondent). 3. Learned counsel for the appellant submits that the present appeal has been filed challenging the impugned judgment as referred hereinabove, on two grounds, firstly that the respondent was not the workman as per Section 2(s) of the Industrial Dispute Act, 1947 and the second contention was that the issue of backwages ought to have been determined after ascertaining as to whether the respondent was in gainful employment during the period of his termination or not. In this respect, learned counsel for the appellant placed reliance on a judgment of the Hon'ble Supreme Court in the case of Talwara Coop. Credit and Service Society Ltd. Vs. Sushil Kumar, 4. The Respondent in person, on the other hand, contends that both the aforesaid issues have already been decided by both the Labour Court as well as the Hon'ble Single Judge of this Court and there is no necessity to interfere with the said findings. In this respect, he draws our attention to the order dated 7.8.2007 passed in I.D. Case No. 55 of 1997 (I.D. Case No. 144 of 2008), whereby the Presiding Officer, Industrial Tribunal, Bhubaneswar had come to reject the application filed by the present appellant, praying to implead one M/s. Usthi Foundation India, Puri as a party in that case and the said order of the Tribunal had never been challenged by the appellant. After the award was passed by the Industrial Dispute Tribunal, the appellant had approached this Court in W.P. (C) No. 4832 of 2009. The respondent had also challenged the amount of backwages in W.P. (C) No. 12357 of 2009. Both the aforesaid cases came to be disposed of by a common judgment vide order dated 11.3.2010 directing to remit the matter back to the Labour Court to pass fresh award. 5. The respondent had also challenged the amount of backwages in W.P. (C) No. 12357 of 2009. Both the aforesaid cases came to be disposed of by a common judgment vide order dated 11.3.2010 directing to remit the matter back to the Labour Court to pass fresh award. 5. The Tribunal passed a final award holding that the opposite party-respondent was a "workman" and directed reinstatement with full backwages. This award passed by the Tribunal was challenged before this Court in W.P. (C) No. 17293 of 2010 which came to be dismissed by the judgment dated 25.9.2012 and is the subject matter of challenge in the present appeal. 6. Insofar as the question of "gainful employment" after the order of termination is concerned, the opposite party-respondent has categorically denied his engagement in M/s. Usthi Foundation India. It appears from the order-sheet of W.P. (C) No. 17293 of 2010, that the appellant herein had filed a petition to implead M/s. Usthi Foundation India as an opposite party in the writ application. Thereafter, notices were issued by this Court to the said M/s. Usthi Foundation India and a counter affidavit came to be filed by one Sri Ratan Barik, working as Deputy Secretary of M/s. Usthi Foundation India, at Penthakata, Dist. Puri wherein, he has categorically stated that "no name as Milan Das @ Milan Krishna Das is forthcoming was/is to be employed in this organization". This affidavit was also taken into consideration by the learned Single Judge. On perusal of the judgment dated 25.9.2012 passed by the learned Single Judge in W.P. (C) No. 17293 of 2010, we find that both the issues raised by the learned counsel for the appellant herein have been duly considered and held against the appellant-management. Insofar as the question, as to whether the respondent was a workman or not, after dealing with the various case laws and the concerned law on the subject, in Paragraphs 10 and 11 of the judgment, which requires no repetition for the reasons of brevity. 7. On perusal of the judgment of the Hon'ble Single Judge, we find no justifiable ground to entertain any challenge thereto, since we are in respectful agreement with the reasons indicated therein. 7. On perusal of the judgment of the Hon'ble Single Judge, we find no justifiable ground to entertain any challenge thereto, since we are in respectful agreement with the reasons indicated therein. Insofar as the question of backwages is concerned, as to whether the opposite party was gainful employment after termination, we are of the considered view that the judgment of the Hon'ble Supreme Court in the case of Talwara Co-operative Credit & Service Society Ltd. (supra) relied upon by the appellant in the facts of the case do not apply. The principle enunciated by the Hon'ble Supreme Court, on the other hand, clearly supports the case of the opposite party-respondent. For better appreciation, the relevant paragraph i.e. Paragraph-14 thereof, is quoted hereunder: 14. This Court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Indian Evidence Act, the burden would be on the workman. The burden, however, is a negative one. 8. It is well settled by the Hon'ble Supreme Court that Section 106 of the Indian Evidence Act casts burden on the workman but, the burden, however, is a negative one. Such burden has been duly discharged by the opposite party-respondent by denying that he was ever in employment after his termination from the services of the appellant. Consequently, the onus of the workman stood discharged and the onus of proof should shifted to the employer to show that the employee was gainful employment, which the appellant has miserably failed. 9. In the present case, the appellant-employer alleged that the respondent had been engaged by M/s. Usthi Foundation India. Although the Tribunal had rejected the petition filed by the appellant to implead the said organization and no challenge thereto was carried by the appellant, yet, once again, in the writ petition before the learned Single Judge, a similar prayer was made and M/s. Usthi Foundation India was noticed. An affidavit on behalf of M/s. Usthi Foundation India came to be filed supporting the workman and not in any manner supporting the case of the appellant-employer. Therefore, clearly the Appellant has failed to establish that the Respondent was in any form of gainful employment post his termination from service. An affidavit on behalf of M/s. Usthi Foundation India came to be filed supporting the workman and not in any manner supporting the case of the appellant-employer. Therefore, clearly the Appellant has failed to establish that the Respondent was in any form of gainful employment post his termination from service. In the light of the aforesaid circumstances, we are of the considered view that the present appeal deserves to be dismissed. Accordingly, the appeal stands dismissed being devoid of any merit but, in the circumstances, without cost. Final Result : Dismissed