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 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 discharged the burden by establishing that he was unemployed for thirteen months after termination. 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. 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. “However, considering the conduct of the appellant of withdrawing the affidavit filed earlier and not raising the contention of unemployment in the fresh affidavit, the appellant cannot be granted the benefit of back wages for the entire period from the date of termination till reinstatement,” the Court said.