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1. When the question of determining the entitlement of a person to back wages is

concerned, the employee has to show that he was not gainfully employed. The

initial burden is on him. After and if he places materials in that regard, the

employer can bring on record materials to rebut the claim. In the instant pleaded

nor placed any material in that regard. It is not in dispute that the respondent did

not raise any plea in his written statement that he was not gainfully employedduring the said period. (para !

". #oming back to back wages, e$en if the court %nds it necessary to award back

wages, the question will be whether back wages should be awarded fully or only

partially (and if so the percentage!. That depends upon the facts and

circumstances of each case. Any income recei$ed by the employee during the

rele$ant period on account of alternati$e employment or business is a rele$ant

factor to be taken note of while awarding back wages, in addition to the se$eral

factors mentioned in &udhan 'ingh and day )arain *andey. Therefore, it is

necessary for the employee to plead that he was not gainfully employed from the

date of his termination. While an employee cannot be asked to pro$e the

negati$e, he has to at least assert on oath that he was neither employed nor

engaged in any gainful business or $enture and that he did not ha$e any income.

 Then the burden will shift to the employer. +ut there is, howe$er, no obligation on

the terminated employee to search for or secure alternati$e employment. +e that

as it may. (*ara !

. A*'&T# $. '. )arsagoud ("--! " '## "1"“9. We fnd merit in the submission so made. There is a dierence between an

order o reinstatement accompanied by a simple direction or continuity o 

service and a direction where reinstatement is accompanied by a specifc

direction that the employee shall be entitled to all the consequential benefts,

which necessarily ow rom reinstatement or accompanied by a specifc

direction that the employee shall be entitled to the beneft o the increments

earnin durin the period o absence. !n our opinion, the employee ater havin

been held uilty o unauthori"ed absence rom duty cannot claim the beneft o 

increments notionally earned durin the period o unauthori"ed absence in the

absence o a specifc direction in that reard and merely because he has been

directed to be reinstated with the beneft o continuity in service.#

/. 'imilarly in A*'&T# $. Abdul 0areem, AI& "-- '# 231, the '# held asfollows

“$evertin to the acts o the case at hand, as already noticed,

the %abour &ourt specifcally directed that the reinstatement would be without bac' waes. There is no specifc direction that the employee would be entitled to all the consequential benefts.Thereore, in the absence o specifc direction in that reard,merely because an employee has been directed to be reinstated without bac' waes, he could claim a beneft o incrementsnotionally earned durin the period when he was not on duty or durin the period when he was out o service. !t would beinconruous to suest that an employee, havin been held uilty and remained absent rom duty or a lon time, continues to earnincrements thouh there is no payment o waes or the period o 

absence. “ 

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5. I feel both these cases bring out clearly that (a) there has to be a

specic order from the Industrial Tribunal on accrual of consequential

benets including increments ; (b) increment and other benets cannot

be claimed as a matter of right; and (c) if Bibhu was aggreied by non!

award of increment and other benets with full bac" wages# he should

hae led appeal. $oweer# Bibhu chose to le e%ecution petition whichalso establishes that the award has attained nality and it is not open

for him to indirectly challenge the award in e%ecution proceedings.