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TMI Blog2023 (7) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... dence 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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. - Abhay S. Oka, Rajesh Bindal JJ. For the Petitioner : Mr. P. George Giri, AOR Ms. Jasmin Kurian Giri, Adv. Mr. Shaji Sebastian, Adv. Mr. Shiyas K R, Adv. For the Respondent : Dr. Monika Gusain, AOR Mr. Hariom Yaduvanshi, Adv. Ms. S. Harini, Adv. Mr. Arani Chaudhury, Adv. JUDGMENT ABHAY S. OKA, J. FACTUAL ASPECTS Leave granted. 1. The appellant was employed as a conductor on 22nd June 1985 by the respondent Delhi Transport Corporation. The appellant was served with a charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember 2015, the denial of back wages has been upheld by the Division Bench. 4. Notice was issued by this Court on 18th March 2016. We may note here that in terms of the award of the Labour Court which was not challenged by the respondent, the appellant was reinstated in service with effect from 23rd July 2009. He superannuated on 31st March 2020. SUBMISSIONS 5. The learned senior counsel appearing for the appellant urged that even 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. He submitted that before the Labour Court, the appellant was subjected to cross -examination on this aspect by the advocate for the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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. 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. 8. Now, coming to the facts of the case, we find that in the statement of cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw 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 secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We direct the respondent to pay a sum of Rs.3 lakhs to the appellant as back wages within a period of two months from today. The appellant shall provide his account details and a copy of a cancelled cheque of his account to the advocate for the respondent. The amount shall be transferred by the respondent to the bank account of the appellant within a stipulated time of two months. In the event of failure of the appellant to furnish details of his bank account and a copy of the cancelled cheque to the advocate for the respondent within a period of one month from today, it will be open to the respondent to deposit the amount with the Labour Court. The Labour Court shall permit the appellant to withdraw the amount. In the event the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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