To Claim Backwages, Initial Burden Is On Employee To Establish That He Was Not Gainfully Employed During Period Of Dismissal : Supreme Court

The Supreme Court on Wednesday ordered the Delhi Transport Corporation (DTC) to pay Rs. 3 lakhs in lieu of back wages to a conductor who was terminated from service and later on reinstated by the order of the Labour Court on the ground that the appellant (conductor) discharged the burden by establishing that he was unemployed for thirteen months after termination. The division bench comprising Justice Abhay S. Oka and Justice Rajesh Bindal observed:“It is not possible to accept that for the entire period of thirteen years, the appellant had no source of income. However, 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.”FactsThe appellant was employed as a conductor on June 22, 1985 by the respondent- Delhi Transport Corporation.The appellant was served with a charge sheet on September 8, 1992 alleging that while discharging duties as a conductor on a particular route, he collected a sum of Rs.4/- from two passengers, but failed to issue tickets to them. After the enquiry, the DTC passed an order of removal of the appellant from service with effect from June 14, 1996.The appellant approached the Labour Court challenging the enquiry and consequent order of removal. By the award dated March 17, 2009, the Labour Court came to the conclusion that the charge against the appellant was not established by the respondent. Accordingly, by the said award, the Labour Court passed an order of reinstatement of the appellant in service.However, the Labour Court denied back wages to the appellant on the ground that the appellant has not discharged the burden of proving that he was not gainfully employed from the date of removal from service.Being aggrieved by the denial of the back wages, the appellant filed a writ petition before the Single Judge of Delhi High Court which was dismissed. The appellant filed an appeal before the Division Bench of Delhi High Court. By the impugned judgment dated December 11, 2015, the denial of back wages was upheld by the Division Bench.Hence, the appellant approached the Supreme Court by way of Special Leave Petition (SLP).ArgumentsThe Counsel appearing for the appellant submitted that in the statement of claim filed before the Labour Court, the appellant had specifically pleaded that he was unemployed from the date of his removal from service and the appellant was subjected to cross-examination on this aspect.Thus, it was argued that the appellant discharged the burden on him by proving that he did not have any employment after his removal from service by the respondent.On the other hand, the Counsel appearing for the respondent submitted that before the Labour Court, on July 18, 2008, an affidavit was filed by the appellant in which there was an assertion that the appellant was unemployed from the date of his termination and was not able to secure any employment. However, the said affidavit was withdrawn and a fresh affidavit was filed in which no such specific assertion was incorporated. Thus, it was contended that the appellant has not discharged the burden on him of making out of a case that he was unemployed from the date of termination of service.Court’s Verdict The Supreme Court relied upon its judgment in National Gandhi Museum v. Sudhir Sharma (2021) 12 SCC 439 in which it was held that the fact whether an employee after dismissal from service was gainfully employed is something which is within his special knowledge. The Court noted:“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. However, in what manner the employee can discharge the said burden will depend upon on peculiar facts and circumstances of each case. It all depends on the pleadings and evidence on record. 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.”It was observed by the Court that there is a specific case made out by the appellant that he was not gainfully employed atleast as on August 8, 1997 on which he filed the statement of claim before the Labour Court.“Therefore, 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 Court noted.The Court opined that in the statement of claim, it is specifically asserted that till August 1997 when the statement of claim was...

To Claim Backwages, Initial Burden Is On Employee To Establish That He Was Not Gainfully Employed During Period Of Dismissal : Supreme Court

Udit Singh

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