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PARTHA SARATHI SEN
Gillanders Abruthnot & Co. Ltd. – Appellant
Versus
Ld. Fifth Industrial Tribunal – Respondent
JUDGMENT :
PARTHA SARATHI SEN, J.
1. By filing the instant writ petition the writ petitioner has prayed for issuance of appropriate writ for quashing and/or cancelling and/or setting aside the award dated 19.11.2009 as passed by the 5th Industrial Tribunal, West Bengal (hereinafter referred to as the said ‘Tribunal” in short).
2. While passing the impugned award the said Tribunal directed the writ petitioner/company to pay backwages to the private respondent no.3 to the extent of 80 per cent from the date of dismissal from service to the date of his superannuation after deducting the amount already paid.
3. Before adverting to the rival contentions of the contending parties some admitted facts are required to be looked into and those are stated hereinbelow in seriatim:-
ii. On 13.01.1982 the private respondent no.3 was served with a charge sheet with a direction to submit his written explanation within 48 hours.
iii. On 27.01.1982 the private respondent submitted his reply with the acting factory manager, Kalamaz
The burden of proof lies on the dismissed employee to demonstrate unemployment to claim backwages, and the Tribunal must consider all relevant evidence before making an award.
The burden of proof of the employee's unemployment during the interregnum period lies with the employee, and the initial onus is on the employee to plead and prove that he was not gainfully employed.....
Decision of the Labour Court in granting 20% back wages is in consonance with the facts and circumstances of the case as well as it is legally sustainable. Therefore, the impugned award passed by the....
The main legal point established in the judgment is the requirement to prove the contents of documents by primary evidence or secondary evidence under Sections 61 and 65 of the Evidence Act.
The main legal point established in the judgment is that in cases of wrongful termination of service, the employee must prove non-employment to claim back wages, and the employer has the burden to di....
In cases of wrongful termination, reinstatement with back wages is the normal rule unless the employer proves the employee was gainfully employed during the termination period.
The employer bears the burden of proving that the worker was gainfully employed during the dispute period to deny back wages; failure to provide evidence supports the worker's claim to back wages.
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