2023 (7) TMI 1329 - SC - Indian Laws

Denial 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the Labour Court making a categorical statement on oath that he was not employed from the date of termination was withdrawn and in the fresh affidavit filed by way of evidence, such a specific contention was not raised.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.

Summary

Issues Involved:
The case involves the denial of back wages to an employee who was reinstated in service after being removed on charges of misconduct. The main issue is whether the employee is entitled to full back wages for the period of his unemployment.

Factual Aspects:
The appellant, employed as a conductor by the respondent, was removed from service in 1996 based on misconduct allegations. The Labour Court later found the enquiry to be illegal and ordered reinstatement without back wages. The appellant challenged the denial of back wages in the High Court, which was upheld. The appellant was reinstated in 2009 and superannuated in 2020.

Submissions:
The appellant contended that he had been unemployed since his removal and thus deserved full back wages. The respondent argued that the appellant failed to prove his unemployment status and provided documents showing retiral dues and potential salary.

Court's View:
The Supreme Court emphasized that the burden of proving unemployment post-termination lies on the employee. The appellant's statement of claim and withdrawn affidavit both indicated unemployment. Despite the withdrawal of the affidavit, the appellant's assertion of unemployment till August 1997 was considered. The respondent failed to prove alternative income sources for the appellant.

The Court held that reinstatement does not automatically entail back wages and considered the appellant's conduct in withdrawing the affidavit. A compromise sum of Rs.3 lakhs was awarded as back wages, considering the appellant's salary difference from removal to reinstatement. The Labour Court was directed to facilitate the payment within two months, with interest in case of delay.

In conclusion, the appeal was partly allowed, modifying the previous judgments and ordering the respondent to pay Rs.3 lakhs as back wages to the appellant within the stipulated time frame.