JUDGMENT : Heard learned counsel for the parties. 2. The present writ petition has been filed for quashing the judgment dated 13.03.2010 in BS Case No. 10/96 passed by the Presiding Officer, Labour Court, Jamshedpur, whereby the complaint filed by the respondent was allowed and the petitioner was directed to reinstate the respondent and to pay him back wages within 60 days from the date of the judgment, failing which, the petitioner would be liable to pay interest @ 9 % per annum from the date of judgment. 3. Learned counsel for the petitioner submits that on 20.01.1996 the respondent was working in A-Shift and there was one guest who required the service of bearer at 5 AM and therefore, the respondent was asked to come one hour earlier to his job but he refused to do so and thereafter, another bearer working in B-Shift was requested to come to his job on the next date i.e. on 21.1.1996 at 5 AM and the respondent was directed to come in B-Shift. Despite the said clear instruction in that regard, the respondent turned up in A-Shift at 6 AM and even after being told by the other bearer who was present since 5 AM that his duty has been changed to B-Shift, the respondent remained in the premises and when the supervisor came at about 9 AM and asked him to come in B-Shift, he shouted at him and refused to come in B-Shift. Since it was a case of insubordination, the matter was reported to the higher authority who issued charge-sheet to the respondent. It is further submitted that at the initial stage, the complainant participated in the enquiry proceeding and on the 3rd day of the enquiry, he requested assistance of an unrecognized Union, which was not allowed and thereafter he did not participate in the enquiry proceeding. After giving ample opportunity to the respondent for taking part in the enquiry proceeding, the enquiry was held ex-parte and the Enquiry Officer held the respondent guilty of the charges levelled against him. Thereafter, the respondent moved before the learned Labour Court, Jamshedpur after his termination from service. After giving ample opportunity to the respondent for taking part in the enquiry proceeding, the enquiry was held ex-parte and the Enquiry Officer held the respondent guilty of the charges levelled against him. Thereafter, the respondent moved before the learned Labour Court, Jamshedpur after his termination from service. It is submitted that the learned Labour Court did not appreciate the evidence adduced by the parties during the proceeding before it, rather looked into the evidence adduced during the enquiry proceeding and the findings given by the Enquiry Officer and held that the charges against the respondent has not been proved and thus he was entitled to be reinstated in service with full back wages and consequential benefits with continuity of service. 4. In course of argument, learned counsel for the petitioner confines his prayer to the extent that the learned Labour Court while directing the petitioner to reinstate the respondent should not have directed to pay entire back wages to the respondents in absence of any pleading made on behalf of the respondent in the said proceeding to the effect that the respondent was not gainfully employed during the period he remained out of service. It is further submitted that the respondent should have at least pleaded or made statement before the learned Labour Court at the first instance that he was not gainfully employed or was employed on the lesser wages. It is therefore submitted that the impugned judgment of the learned Labour Court, Jamshedpur to the extent that, direction has been given to the petitioner to make entire payment of back wages, is unreasonable, excessive and not in accordance with law. It is also submitted that the learned Labour Court was also not justified in awarding interest of 9% per annum from the date of the judgment, as the same was not pendente lite, rather, it was conditional for non-payment of the back wages by the petitioner within a period of 60 days. It is finally submitted that the respondent also did not take recourse for the execution of award during the pendency of the present writ petition, thus, putting unwarranted burden upon the petitioner to pay interest @ 9% over the back wages from the date of impugned judgment till its payment. It is finally submitted that the respondent also did not take recourse for the execution of award during the pendency of the present writ petition, thus, putting unwarranted burden upon the petitioner to pay interest @ 9% over the back wages from the date of impugned judgment till its payment. In support of his argument, learned counsel for the petitioner relied on a decision rendered by the Hon'ble Supreme Court in the case of Deepali Gundu Surwase Versus Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others reported in (2013) 10 SCC 324 . 5. Per contra, Mr. Jaiprakash, learned senior counsel appearing for the respondent submits that on perusal of the impugned judgment dated 13.03.2010 passed by the Presiding Officer, Labour Court, Jamshedpur, it would be evident that each and every factual aspect of the matter was properly dealt with and on detailed discussion of the evidences led on behalf of the parties, the learned Labour Court reached a conclusion that the services of the respondent was terminated for committing misconduct but the petitioner has not been able to prove any misconduct on the part of the respondent. Under the said circumstance, the order of termination of the respondent has been set aside by the learned Labour Court finding it to be harsh and disproportionate punishment. It is also submitted by the learned senior counsel for the respondent that the impugned order dated 13.03.2010 passed by the learned Labour Court is completely justified including the direction for payment of full back wages and the same warrants no interference by this Court. 6. Having heard learned counsel for the parties and considering the limited issue of payment of entire back wages to the respondent, as directed by the learned labour court, I find that the respondent has not made any pleading in the proceeding before the learned Labour Court that during the period he remained out of service, he was not gainfully employed elsewhere or was employed on lesser wages elsewhere than what he was being paid before issuance of order of termination against him. The Hon'ble Apex Court in the case of Deepali Gundu Surwase Versus Kranti Junior Adhyapak Mahavidyalaya (supra) has laid down the principle with regard to payment of back wages of terminated employees in the event the order of reinstatement is passed in their favour by the adjudicating authority. The Hon'ble Apex Court in the case of Deepali Gundu Surwase Versus Kranti Junior Adhyapak Mahavidyalaya (supra) has laid down the principle with regard to payment of back wages of terminated employees in the event the order of reinstatement is passed in their favour by the adjudicating authority. The relevant paragraph of the judgment is quoted as under : 38. “The propositions which can be culled out from the aforementioned judgments are : 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments”. 7. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments”. 7. Coming back to the present case, it is evident from perusal of the impugned judgment of the learned Labour Court, Jamshedpur it does not appear that while issuing a direction upon the petitioner, the learned Labour Court has taken into consideration the fact as to whether the respondent was gainfully employed during the period of his termination and in absence of any finding to that effect, the direction issued by the learned labour Court for payment of entire back wages to the respondent appears to be unreasonable and excessive wherein the petitioner has been directed to make payment of entire back wages to the respondents with 9% interest per annum from the date of judgment i.e. 13.03.2010 till its payment. 8. Under the aforesaid facts and circumstance, part of the impugned judgment dated 13.03.2010, in BS Case No. 10/96, passed by the Presiding Officer, Labour Court, Jamshedpur, is set aside. 9. It is however ordered that the petitioner shall be liable to make payment of 50 % of the back wages to the respondent from January 1996 which shall carry 6 % simple interest from the date of the judgment passed by the Presiding Officer, Labour Court, Jamshedpur, i.e. 13.03.2010. 10. The writ petition is accordingly disposed of with the aforesaid direction and observation.