JUDGMENT : In view of outbreak of COVID-19 pandemic, case has been taken up through Video Conferencing. Concerned lawyers have no objection with regard to the proceeding, which has been held through Video Conferencing today at 10:30 a.m. onwards. They have no complaint in respect to the audio and video clarity and quality. 2. Petitioner has approached this Court with a prayer for quashing or setting aside the Award dated 18.03.2014, passed by the learned Presiding Officer, Labour Court, Jamshedpur in Ref. Case No. 13/2002, by which the reference has been decided in favour of the workman and Management-petitioner was directed to reinstate the workman in service with full back wages with consequential benefits. 3. As per the factual matrix, the workman was employed under the petitioner –Management and at the relevant time, was working in Medical Department. On 28.05.1999, the workman-respondent requested the Management-petitioner for special loan of Rs.3000/- for visiting his ailing father at Vijay Nagaram and also applied for leave from 31.05.1999 to 14.06.1999 for the said purpose. However, the workman did not utilize the aforesaid loan amount for said purpose and did not visit at Vijay Nagaram and stayed at Jamshedpur and as such, committed misconduct by obtaining special loan under the false ground. Accordingly, charge-sheet was issued against him on 24.07.1999. Pursuant thereto, he submitted his reply, wherein he stated that since his brother come to Jamshedpur itself along with his ailing father on 01.06.1999 and as such, he did not leave Jamshedpur, but treatment of the father was started at Jamshedpur and also he utilized the leave for doing personal work. However, reply of the workman was not found satisfactory and as such, an Enquiry was conducted and workman was found guilty of the charges. Thereafter, vide order dated 01.10.1999, the workman-respondent was dismissed from the services by the Management. Aggrieved by the same, the respondent-workman raised an industrial dispute, which was referred to the learned Labour Court, Jamshedpur relating to illegal termination of the petitioner with the following terms of Reference: “Whether the dismissal of services of Shri T.V.R. Raju, P.No.16105, workman of medical department of the Tinplate Company of India Ltd., Jamshedpur, is justified? If not, what relief the workman is entitled to ? 4. Upon the receipt of the same, the learned Tribunal registered the same as Ref. If not, what relief the workman is entitled to ? 4. Upon the receipt of the same, the learned Tribunal registered the same as Ref. No. 13 of 2002 and issued notices upon the respective parties to submit their written statement, rejoinder, etc. Upon receipt of the notice and written statement of the petitioner-management, the petitioner appeared before the learned Tribunal and filed rejoinder. 5. The learned Labour Court, after hearing the parties at length and after perusing the documents and evidences brought on record, came to the conclusion vide Award dated 18.03.2014 that the Management witnesses have no personal knowledge of the case and therefore, it was not proved whether the father of the workman was ill or not and accordingly the allegation of obtaining loan and leave for treatment of his ailing father is not proved. Further, the loan amount was recovered by the Management and therefore, no financial loss is caused to the Management. Learned Labour Court also held that the Management was upset with the workman for his participation in Trade Union Politics, therefore, neither the copy of enquiry report was given to him nor second show-cause was issued to him before issuance of order of dismissal. Accordingly, the Management was directed to reinstate the respondent-workman into services along with full back wages and consequential benefits. Aggrieved by the same, the petitioner-Management has been constrained to knock the door of this Court, challenging the Award dated, 18.03.2014. 6. Mr. Manish Kumar, learned counsel appearing for the petitioner-Management assailing the impugned Award on the ground that the learned Court below erred in law while holding that the Management witnesses could not prove that the father of the workman was not ill when this fact was in knowledge of the workman, he ought to have prove it. The learned Court below did not appreciate that the workman failed to prove that his father was ill at the relevant time and he did not fraudulently obtained the loan for his treatment. Charge sheet was issued against the workman under the relevant provisions. The reply/ explanation filed by the workman was found to be unsatisfactory and, therefore, the management decided to hold domestic enquiry and thereafter, the enquiry officer conducted domestic enquiry in accordance with principles of natural justice. Charge sheet was issued against the workman under the relevant provisions. The reply/ explanation filed by the workman was found to be unsatisfactory and, therefore, the management decided to hold domestic enquiry and thereafter, the enquiry officer conducted domestic enquiry in accordance with principles of natural justice. The workman was given full opportunity to represent his case and also to cross examine the management witnesses and produce his own documentary and material witnesses. He further submits that no evidence was available on record for the learned Court below to come to the finding that the workman was victimized by the Management. Financial impropriety is a grave misconduct, which cannot be countenanced. He further submits that 17 B of the Industrial Dispute Act is not attracted in this case as it is after the Award, workman is claiming back wages. The workman had to prove that he was not gainfully employed and not the employer is required to lead any evidence that concerned employee was gainfully employed or not and as such, respondent- workman is not entitled for any back wages. To buttress his arguments, learned counsel places heavy reliance on the Judgment of Hon’ble Apex Court in case of Rajasthan State Road Transport Corporation, Jaipur Vs. Phool Chand (dead) reported in AIR 2018 SC 4534 : 7. Per contra, respondent has file counter affidavit. 8. Mr. Pandey A. N. Roy, learned Sr. counsel appearing for the respondent vehemently opposes the contention of the learned counsel for the petitioner-Management and submits that there is no illegality or any infirmity in the impugned Award. It is also the duty of the Management to lead evidence that the workman was gainfully employed or not and if there is no evidence on the part of the Management, they are bound to pay back wages to the workman in view of Section 17 B of the Industrial Disputes Act, 1947. He further submits that denial of backwages would amount to indirectly punishing the employee and rewarding the employer by relieving him of the obligation to pay backwages and as such, instant writ petition is fit to be dismissed. 9. He further submits that denial of backwages would amount to indirectly punishing the employee and rewarding the employer by relieving him of the obligation to pay backwages and as such, instant writ petition is fit to be dismissed. 9. Be that as it may, having considered rival submission of the parties across the bar and after examination of the documents brought on record and after considering the material facts and law laid down in catena of decisions of Hon’ble Apex Court, it appears that the learned Tribunal has passed an order for reinstatement of the respondent-workman with full backwages and consequential benefits. However, the quarrel is not regarding the reinstatement, but the Management-petitioner is aggrieved by the full backwages with consequential benefits, awarded to the workman-respondent. Now, the issue to be considered is whether in the present circumstances, the respondent-workman is entitled for full backwages after reinstatement or not? Admittedly, there is no straight jacket formula on the aforesaid issue that if a workman/employee is reinstated, he is entitled for full backwages. What is to be looked into is that whether the employee/workman was fully exonerated in the Domestic Enquiry and whether he was gainfully employed or not? Similar, issue fell for consideration before the Hon’ble Apex Court in case of Jayantibhai Raojibhai Patel Vs. Municipal Council, Narkhed & Ors., reported in 2019 SCC Online SC 1071 wherein it was held that the general principle that back-wages must follow a determination in regard to the illegality of termination should be applied. This was sought to be supported by relying upon the decision of this Court in Hindustan Tin Works (P) Ltd. v. Employees (Hindustan Tin Works”) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (“Deepali Surwase”). The Hon’ble Apex Court in the case of Rajasthan State Road Transport Corporation, Jaipur (Supra) has held in para-12 as under: “12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee.” 10. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee.” 10. The issue has already been set at rest and is no longer resintegra. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial, depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages are required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies, etc. were elaborately discussed in several cases by the Hon’ble Apex Court wherein the law on these questions has already been settled. Similar issues fell for consideration before the Hon’ble Apex Court in a number of cases, which are relevant to be discussed. 11. In the case of M.P. SEB vs. Jarina Bee reported in (2003) 6 SCC 141 , the Two-Judge Bench referring to P.G.I. of Medical Education & Research Vs. Raj Kumar case reported in (2001) 2 SCC 54 , and held that it is always incumbent upon the Labour Court to decide the question relating to quantum of back wages by considering the evidence produced by the parties. 12. In the case of Haryana Roadways Vs. Rudhan Singh reported in (2005) 5 SCC 591 , the three-Judge Bench considered the question whether back wages should be awarded to the workman in each and every case of illegal retrenchment. The factual matrix of that case was that after finding the termination of the respondent’s service as illegal, the Industrial Tribunal-cum-Labour Court awarded 50% back wages. The writ petition filed by the appellant was dismissed by the Punjab and Haryana High Court. The Hon’ble Supreme Court set aside the award of 50% back wages on the ground that the workman had raised the dispute after a gap of 2 years and 6 months and the Government had made reference after 8 months. The Court then proceeded to observe: (SCC p. 596, para-8). “8. The Hon’ble Supreme Court set aside the award of 50% back wages on the ground that the workman had raised the dispute after a gap of 2 years and 6 months and the Government had made reference after 8 months. The Court then proceeded to observe: (SCC p. 596, para-8). “8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting application from the employment exchange, nature of appointment, namely whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year.” 13. In the case of U.P. State Brassware Corpn. Ltd. Vs. Uday Narain Pandey reported in (2006) 1 SCC 479 , the two-Judge Bench observed as under: “22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputable, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. Uday Narain Pandey reported in (2006) 1 SCC 479 , the two-Judge Bench observed as under: “22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputable, 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.” 14. The Court also reiterated the rule that the workman is required to plead and prima-facie prove that he was not gainfully employed during the intervening period. 15. In the case of J.K. Synthetics Ltd. Vs. K.P. Agrawal reported in (2007) 2 SCC 433 , it has been held that the Labour Court was not justified in awarding the back wages. 16. In the case of Metropolitan Transport Corpn. Vs. V. Venkatesan reported in (2009) 9 SCC 601 , it has been held at para-19 to 22 as under: “19. First, it may be noticed that in the seventies and eighties, the directions for reinstatement and the payment of full back wages on dismissal order having been found invalid would ordinarily follow as a matter of course. But there is change in the legal approach now. 20. We recently observed in Jagbir Singh v. Haryana State Agriculture Mktg. Board, reported in (2009) 15 SCC 327 , that in the recent past there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that the relief of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is held to be in contravention of the prescribed procedure. 21. Secondly, and more importantly, in view of the fact that the respondent was enrolled as an advocate on 12.12.2000 and continued to be so until the date of his reinstatement (15-6-2004), in our thoughtful consideration, he cannot be held to be entitled to full back wages. That the income received by the respondent while pursuing legal profession has to be treated as income from gainful employment does not admit of any doubt. In North-East Karnataka Vs. That the income received by the respondent while pursuing legal profession has to be treated as income from gainful employment does not admit of any doubt. In North-East Karnataka Vs. M. Nagangouda reported in (2007) 10 SCC 765 , this Court held that ‘gainful employment’ would also include self-employment. We respectfully agree. 22. It is difficult to accept the submission of the learned Senior Counsel for the respondent that he had no professional earnings as an advocate and except conducting his own case, the respondent did not appear in any other case. The fact that he resigned from service after 2 – 3 years of reinstatement and re-engaged himself in legal profession leads us to assume that he had some practice in law after he took sanad on 12-12-2000 until 15-6-2004, otherwise he would not have resigned from the settled job and resumed profession of glorious uncertainties.” 17. In the case of Jagbir Singh Vs. Haryana State Agriculture Mktg. Board reported in (2009) 15 SCC 327 , it has been held as under: “14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee. 15. Therefore, the view of the High Court that the Labour Court erred in granting reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages.” 18. In the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324 , it has been held that reinstatement entitles employee to claim full back wages. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages.” 18. In the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324 , it has been held that reinstatement entitles employee to claim full back wages. Denial of back wages would amount to indirectly punishing the employee and rewarding the employer by relieving him of the obligation to pay back wages. Where employer wants to deny back wages or contest the employee’s entitlement to get consequential benefits, employer has to plead and prove that the employee was gainfully employed during the intervening period. 19. In view of aforesaid reported Judgments, it can comfortably be held that as and when the order of termination is set aside, the workman is entitled for backwages but as far as quantum is concerned, it depends on the judicial discretion taken into consideration the nature and the charges against the employee and the pleadings based with evidence regarding gainful employment. 20. In the instant case, neither of the parties pleaded or adduced any of the evidence to prove the material facts required for award of the backwages. Onus lies on the employee to prove and plead whether he was gainfully employed or not but the employer also cannot be given a clean chit. Though initial burden is on the employee, but the employer is also to prove that the employee was gainfully employed during the relevant period. 21. In view of the aforesaid facts and circumstances, this Court is not in agreement with the learned Tribunal to pay full backwages after reinstatement in service as granting full backwages definitely causes prejudice to the Management/employer/petitioner. This Court thinks it proper to modify the award of the learned Tribunal to the extent only that respondent-workman is entitled for 50 % of the total backwages for the period from termination/dismissal till his reinstatement. Accordingly, petitioner-Management is directed to pay the same, within a period of twelve weeks from the date of receipt/production of a copy of this order. The Award of the learned Tribunal is affirmed with the aforesaid modification. 22. Resultantly, writ petition stands disposed of. 23. Pending I.A., if any, also stands disposed of.