Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2023 (7) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (7) TMI 1329 - SUPREME COURTDenial of Back wages - appellant failed to discharge the burden of proving that he was not gainfully employed from the date of removal from service - HELD THAT:- In the case of NATIONAL GANDHI MUSEUM VERSUS SUDHIR SHARMA [2021 (9) TMI 1523 - SUPREME COURT], this Court held that the fact whether an employee after dismissal from service was gainfully employed is something which is within his special knowledge. Considering the principle incorporated in Section 106 of the Indian Evidence Act, 1872, the initial burden is on the employee to come out with the case that he was not gainfully employed after the order of termination. It is a negative burden - Since, it is a negative burden, in a given case, an assertion on oath by the employee that he was unemployed, may be sufficient compliance in the absence of any positive material brought on record by the employer. In the statement of claim filed thirteen months after termination, a specific assertion was made by the appellant that he was unemployed. Neither any material has been placed by the respondent on record to show that the appellant had a source of income nor anything material has been elicited by the respondent while cross-examining the respondent - The law is very well settled. Even if Court passes an order of reinstatement in service, an order of payment of back wages is not automatic. It all depends on the facts and circumstances of the case. It is true that affidavit filed by the appellant on 18th July 2008 before the Labour Court making a categorical statement on oath that he was not employed from the date of termination was withdrawn and in the fresh affidavit filed by way of evidence, such a specific contention was not raised. But there are two factors in favour of the appellant. In the statement of claim, it is specifically asserted that till August 1997 when the statement of claim was filed, the appellant found it difficult to get employment and in fact he was unemployed. The respondent has not come out with the case that from the date of his removal from service, the appellant had another source of income. Thus, the appellant discharged the burden on him by establishing that he was unemployed at least till August 1997. From the chart submitted on record by the learned counsel appearing for the respondent, it is found that the gross salary of the appellant on the date of reinstatement was Rs.18,830/. On the date of removal, his salary was approximately Rs.4,000/ per month. Thus, considering the facts of the case, it will be appropriate if a sum of Rs.3 lakhs is ordered to be paid to the appellant in lieu of back wages. To that extent, the appeal must succeed. Accordingly, the award of the Labour Court dated 17th March 2009 and impugned judgments of the High Courts are modified - the respondent are directed to pay a sum of Rs.3 lakhs to the appellant as back wages within a period of two months from today - appeal allowed in part.
|