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 employed
during the said period. (para 8)
2. Coming back to back wages, even if the court finds 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 received by the employee during the
relevant period on account of alternative employment or business is a relevant
factor to be taken note of while awarding back wages, in addition to the several
factors mentioned in Rudhan Singh and Uday Narain Pandey. 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 prove the
negative, he has to at least assert on oath that he was neither employed nor
engaged in any gainful business or venture and that he did not have any income.
Then the burden will shift to the employer. But there is, however, no obligation on
the terminated employee to search for or secure alternative employment. Be that
as it may. (Para 8)
3. APSRTC v. S. Narsagoud (2003) 2 SCC 212:

9. We find merit in the submission so made. There is a difference between an

order of reinstatement accompanied by a simple direction for continuity of
service and a direction where reinstatement is accompanied by a specific
direction that the employee shall be entitled to all the consequential benefits,
which necessarily flow from reinstatement or accompanied by a specific
direction that the employee shall be entitled to the benefit of the increments
earning during the period of absence. In our opinion, the employee after having
been held guilty of unauthorized absence from duty cannot claim the benefit of
increments notionally earned during the period of unauthorized absence in the
absence of a specific direction in that regard and merely because he has been
directed to be reinstated with the benefit of continuity in service.

4. Similarly in APSRTC v. Abdul Kareem, AIR 2005 SC 3791, the SC held as

follows:
Reverting to the facts of the case at hand, as already noticed,
the Labour Court specifically directed that the reinstatement
would be without back wages. There is no specific direction that
the employee would be entitled to all the consequential benefits.
Therefore, in the absence of specific direction in that regard,
merely because an employee has been directed to be reinstated
without back wages, he could claim a benefit of increments
notionally earned during the period when he was not on duty or
during the period when he was out of service. It would be
incongruous to suggest that an employee, having been held guilty
and remained absent from duty for a long time, continues to earn
increments though there is no payment of wages for the period of
absence.

5. I feel both these cases bring out clearly that (a) there has to be a
specific order from the Industrial Tribunal on accrual of consequential
benefits including increments ; (b) increment and other benefits cannot
be claimed as a matter of right; and (c) if Bibhu was aggreived by nonaward of increment and other benefits with full back wages, he should
have filed appeal. However, Bibhu chose to file execution petition which
also establishes that the award has attained finality and it is not open
for him to indirectly challenge the award in execution proceedings.