JUDGMENT AND ORDER : AM Bujor Barua, J. Heard Mr. PJ Saikia, learned counsel for the appellants and Ms. A Bhattacharyya, learned counsel for the respondent, Workman. 2. The Workman, Champak Kumar Bezbaruah, who was serving as Factory Supervisor in the appellant Ghooronia Tea Estate was served with a notice dated 28.06.2000 by the Manager of the Tea Estate requiring him to show cause as to why disciplinary action should not be undertaken on the allegation of misappropriation of green tea leaves. The Workman submitted his reply dated 11.07.2000 to the said show cause. The Management having found the reply to be unacceptable, issued a show cause notice dated 17.07.2000, containing a charge that as per the documentary evidence, the Workman had made incorrect reconciliation of the amount of green tea leaves received from various suppliers and in doing so, a financial loss was caused to the Management to the extent of Rs.68,794/-. It was also charged that the Workman had endorsed the signature of the Manager of the Garden to cover up the act of showing more purchase in the records than what was actually done and in doing so, the Workman had caused a loss of Rs.1,20,780/- in terms of the value of black tea. To such show cause notice of 17.07.2000, the petitioner submitted his reply dated 21.07.2000, wherein he had denied the charges made against him and also sought to give his explanation for the purpose. 3. The Management being not satisfied with the reply of the Workman, informed him by the communication dated 27.07.2000 that a domestic enquiry would be held by an independent person. The Workman by his communication of 11.08.2000 informed the Management that he does not have any witness to be presented in the domestic enquiry, but requested for an opportunity to cross examine the witnesses of the Management, who may depose in the enquiry. 4. In the resultant enquiry a report dated 18.09.2000 was submitted by which the Workman was found guilty of the charges made against him and, in acceptance thereof the Management arrived at a decision to dismiss the Workman. Accordingly, a letter dated 26.09.2000 was served on the Workman requiring him to respond to the said decision of the Management. 4. In the resultant enquiry a report dated 18.09.2000 was submitted by which the Workman was found guilty of the charges made against him and, in acceptance thereof the Management arrived at a decision to dismiss the Workman. Accordingly, a letter dated 26.09.2000 was served on the Workman requiring him to respond to the said decision of the Management. The Workman, submitted his reply dated 03.10.2000, which was found to be unacceptable by the Management and by its letter dated 09.11.2000, the Workman was informed that he had been dismissed from service and also offered one months salary. The Management also filed an application under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (for short, Act of 1947) seeking approval of the action taken by the Management, which was registered as Case No.6/2000. 5. The Labour Court by the order dated 30.05.2000 arrived at a conclusion that the domestic enquiry was done in compliance of the Principles of Natural Justice and that the Workman had failed to prove that the enquiry was not done by complying with all the requirements and, accordingly, the decision of dismissal was approved. 6. In the resultant situation, the Govt. of Assam in the Labour and Employment Department by the Notification dated 13.02.2003 referred a dispute under Section 10 (1) (c) of the Act of 1947 to the Labour Court, Dibrugarh on the following terms: "1. Whether the management of Ghooronia Tea Estate is justified in dismissing the service of Shri CK Bazbaruah from his service w.e.f. 09.11.2000? 2. If not, whether he is entitled to re-instatement with all back wages and other benefits in lieu thereof?" 7. In the proceeding before the Labour Court, the records of Case No.6/2000 was also called and by the order dated 14.02.2005, it was held that the domestic enquiry held by the Management was not proper and, accordingly, the Management was allowed to adduce its evidence. 8. The proceeding before the Labour Court was concluded upon passing of the award dated 20.07.2007, by which it was held that the dismissal of the Workman on 09.11.2000 was not justified and that he be reinstated with all backwages and other benefits. 9. Against the award of the Labour Court, the Management preferred a writ petition which was registered as WP (C) No.1850/2009. 9. Against the award of the Labour Court, the Management preferred a writ petition which was registered as WP (C) No.1850/2009. In the said writ petition, by an interim order dated 13.05.2009, the award of 20.07.2007 was stayed subject to payment under Section 17B of the Act of 1947 and the Management in terms of the said interim order continued to pay the wages to the Workman. 10. The writ petition was given a final consideration by the Judgment and Order dated 26.11.2014, wherein it was held that the evidence on record indicates that none of the witnesses of the Management could prove the charges leveled against the Workman and further inspite of a specific request being made, the Management did not accede to the request of the workman to cross examine the Management witness. The learned Single Judge also referred to Section 11A of the Act of 1947, which provides that while setting aside the order of dismissal and directing reinstatement the Labour Court may do so on such terms and condition as it thinks fit. Accordingly, by the Judgment and Order dated 26.11.2014, the writ petition of the Management was dismissed and the award of the Labour Court dated 20.07.2007 was upheld. 11. The present appeal has been preferred by the Management against the Judgment and Order dated 26.11.2014 in WP (C) No.1850/2009, amongst others, on the ground that the evidence on record pertaining to the domestic enquiry was not taken into consideration by the learned Single Judge and that the Labour Court had passed the award dated 20.07.2007 without considering the documentary evidence led in Case No.6/2000. 12. In course of the hearing of the appeal, the learned counsel for the appellants mainly urged upon the ground that as per the law laid down by the Supreme Court as regards payment of backwages on reinstatement, the Workman is not entitled to full backwages. 13. Mr. PJ Saikia, learned counsel for the appellants relies upon the decision rendered by the Supreme Court in UP State Brassware Corporn. Ltd. And Another Vs. Uday Narain Pandey reported in (2006) 1 SCC 479 , wherein in paragraph 17, it has been held as under: "17. 13. Mr. PJ Saikia, learned counsel for the appellants relies upon the decision rendered by the Supreme Court in UP State Brassware Corporn. Ltd. And Another Vs. Uday Narain Pandey reported in (2006) 1 SCC 479 , wherein in paragraph 17, it has been held as under: "17. Before adverting to the decision relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and /or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched." 14. In the said judgment, the Supreme Court by relying upon certain other judgments wherein the full back wages were not paid had directed the employer in the said case to pay backwages to the extent of 25%. In some of the cases referred in the said judgment backwages to the extent of 75% were allowed, whereas in other cases, it was held that the full backwages granted by the Labour Court be reduced to 50%. 15. Ms. A Bhattacharyya, learned counsel for the Workman relies upon a decision of the Supreme Court rendered in M/s Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd and Others reported in (1979) 2 SCC 80 has held as under: "9. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full backwage except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workmens demand for revision of wages, the termination may well amount to unfair labour practice." 16. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workmens demand for revision of wages, the termination may well amount to unfair labour practice." 16. Further reliance has been placed by the learned counsel for the workman on the decision of the Supreme Court rendered in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya and Others reported in (2013) 10 SCC 324 has held as under: "22. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." 17. By relying upon the said two judgments the learned counsel for the Workman submits that the contention of the Management that the Workman is not entitled to full backwages is unacceptable. 18. But when the judgment rendered in Deepali Gundu Surwase (supra) is looked into, it can be seen that both the other judgments rendered in M/s Hindustan Tin Works Pvt. Ltd., (supra) and UP State Brassware Corporn. Ltd. And Another (supra) were taken into consideration. Apart from the said two judgments several other judgments of the Supreme Court rendered on the question of payment of backwages upon reinstatement were also taken into consideration and, accordingly, in paragraph 38 thereof, the propositions as regards payment of backwages on reinstatement were culled out. Paragraph 38.3 in Deepali Gundu Surwase (supra) is as follows: "38.3. Apart from the said two judgments several other judgments of the Supreme Court rendered on the question of payment of backwages upon reinstatement were also taken into consideration and, accordingly, in paragraph 38 thereof, the propositions as regards payment of backwages on reinstatement were culled out. Paragraph 38.3 in Deepali Gundu Surwase (supra) is as follows: "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 averments 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." 19. As per paragraph 38.3 of Deepali Gundu Surwase (supra), it is a requirement that for getting the full backwages, the Workman is required to either plead or atleast make a statement that he or she was not gainfully employed or was employed on a lesser wage and if the employer wants to avoid payment of full backwages, it has to plead and also lead cogent evidence that the Workman was gainfully employed and was getting wages equal to the wage drawn prior to the termination. But at the same time, it has also been clarified that the onus lies on the employer to make such pleadings only upon the employee showing that he was not employed. 20. But at the same time, it has also been clarified that the onus lies on the employer to make such pleadings only upon the employee showing that he was not employed. 20. The requirement to claim full backwages would be that the employee must plead that he was not gainfully employed and upon such pleadings being made, in the event, the employer wants to avoid the payment, it would be on the employer to show and prove that the employee was not gainfully employed. 21. In the instant case, when the pleadings of the Workman made before the Labour Court is looked into, we do not find any such averments being made that upon the order of dismissal being passed, the Workman was not gainfully employed or that he was employed for a lesser wage. In the absence of such pleading, the claim of the Workman for full backwages cannot be accepted and nor the Labour Court or the learned Single Judge in the writ petition had any material before it to arrive at a conclusion that after the dismissal the Workman was not gainfully employed, so as to grant the full backwages or to uphold the order granting the full backwages. 22. In paragraph 38.5 of Deepali Gundu Surwase (supra) it is also provided in the event, the competent Court or the Tribunal finds that the employer had acted in gross violation of the statutory provisions and or the Principle of Natural Justice or is guilty of victimizing the Workman, the Court or the Tribunal concerned would be fully justified in directing the payment of full backwages and in such cases, the superior Courts under Article 226 or 136 of the Constitution should not interfere, merely because there is a possibility of forming a different opinion on the entitlement of the full backwages. 23. In the instant case from the award of the Labour Court as well as the Judgment of the learned Single Judge, it cannot be inferred that the order of dismissal of the Workman was interfered as because the Management had acted in gross violation of the statutory provisions and or the Principle of Natural Justice or was guilty of victimizing the Workman. In such view, it can be concluded that the present case would not be an appropriate case where this Court under Article 226 of the Constitution would be required not to interfere with the directions to pay the full backwages to the Workman. 24. A further mitigating factor to be taken note of is that in the present appeal the right of the Workman to receive full backwages, upon his death, is being carried forward by his wife, who is also gainfully employed under the same Management. 25. Considering the matter in its entirety, it is concluded that the interest of justice would be met, if the Workman is directed to be paid 50% of the backwages payable to him. In doing so, it is also to be taken note of that certain amounts towards wages had already been paid to the Workman under Section 17B of the Act of 1947 and the amount already paid be not included in the calculation of the 50% backwages payable. 26. The Management, accordingly is directed to pay the backwages @50%, as indicated above within a period of 3 (three) months. 27. In terms of the above, the appeal stands partially allowed, but without any interference in the order of the Labour Court dated 20.07.2007 in Reference Case No. 06/2003 setting aside the dismissal of the Workman, which was upheld by the Judgment and Order dated 26.11.2014 passed in WP (C) No.1850/2009.