4. The learned counsel for the petitioner has
thereafter contended that the Labour Court while
granting back wages of 50% has not taken into
consideration the various factors which the Labour
Court was legally bound to do so. He has further
submitted that the burden of proof to show that the
respondent was not in gainful employment was on the
respondent and, therefore, even though the
petitioner has led no evidence and has not proved
any gainful employment of the respondent still the
Labour Court could not have granted 50% back wages
as has been done in para 22 of the said judgment.
In support of the aforesaid contention the learned
counsel for the petitioner has relied upon the
judgment of the learned Single Judge of this Court
in the case of Navin J. Surti v. Modi Rubber Ltd.,
& Anr., reported in 2004 II CLR 46, the judgment of
the Division Bench of this Court in the case of
Sadanand Patamkar and New Prabhat Silk Mills,
reported in 1974 II LLJ 52 and the latest judgment
of the Apex Court in the case of General Manager,
Haryana Roadways vs. Rudhan Singh, reported in 2005
II CLR 1055. The learned counsel for the petitioner
relying upon the aforesaid judgement has contended
that the trial Court has erred in granting the back
wages. In the present case, the respondent-employee
has led the evidence and in the examination-in-chief
it has been categorically deposed as under :-
