Discharge Of Burden Regarding Whether The Employee Was Gainfully Employed Or Not After Dismissal From The Service Depends On Pleadings And Evidence On Record- Says Sc

CASE TITLE

Ramesh Chand vs Management of Delhi Transport Corporation

BENCH

HON’BLE JUSTICE MR. ABHAY S. OKRA

DATE OF ORDER

05th JULY 2023

FACTS OF THE CASE

• The appellant was a bus conductor under the respondent. On 8th September 1992, he was served with charge sheet.
• It was alleged that while discharging his duties, he collected a sum of four rupees from two passengers but did not gave tickets to them.
• Thereafter, an enquiry was set up and by the order of the respondent the appellant was removed from the service.
• By award dated 17.03.2009, the Labour Court came to the conclusion that the enquiry was illegal and the respondent has failed to prove the allegations against the appellant.
•  The court however said that the appellant has not discharged burden of proof that he has not gainfully employed after the removal. Therefore the court denied back wages to the appellant.
• Aggrieved by which the appellant filed a writ petition before the Delhi High Court but was dismissed. Therefore he filed an appeal before the apex court.

ARGUMENTS BY THE APPELLANT 

• The counsel appearing on behalf of the appellant submitted that the appellant was unemployed from the date of his removal from the service.
• It was submitted that the appellant has adequately discharged the burden of proof before the Labour Court.
• It was submitted that there is nothing contrary therefore the appellant is entitled to back wages.

ARGUMENTS BY THE RESPONDENT 

• The learned counsel appearing on behalf of the respondent submitted that the appellant had withdrawn the affidavit in which he stated that he was unemployed after the removal. 
• It was submitted that fresh affidavit was filed by the appellant but there was no assertion on the point that he was unemployed.

OBSERVATIONS OF THE COURT 

• The court observed that as per section 106 of Indian Evidence Act, 1972 the initial burden lies on the employee to show that he was not gainfully employed after termination of his service.
• The court referred to the case of National Gandhi Museum vs Sudhir Sharma (2021) where the apex court observed that it is within employee’s special knowledge whether he was gainfully employed after termination of his service.
• The court awarded Rs.3 lakhs to the appellant in lieu of back wages.