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2007 Supreme(HP) 10
High Court Of Himachal Pradesh
DEV DARSHAN SUD
PAWAN KUMAR - Appellant
Versus
H.P.STATE INDUSTRIAL DEV.CORPORATION - Respondent
Civil Writ Petition No.847 of 2001
Decided On : 01/04/2007
Mr. K.D.Sood, Advocate for the Petitioner. Mr. Ajay Kumar, Advocate for Respondent No.1.
The burden of proof is on the employee to establish unemployment to be entitled to back wages.
Headnote:
Back Wages - Employment Dispute - The court held that the employee must show that he was not gainfully employed to be entitled to back wages. The burden of proof is on the employee to establish unemployment, and the employer can rebut the claim with evidence.
Fact of the Case:
The petitioner challenged the order of the Industrial Tribunal-cum-Labour Court, seeking reinstatement with full back seniority and 20% of the wages.
Finding of the Court:
The court dismissed the writ petition, stating that there was no evidence to show that the employee was not gainfully employed, and therefore, he was not entitled to back wages.
Issues: Entitlement to back wages, Burden of proof on employee
Ratio Decidendi: The employee must demonstrate unemployment to be entitled to back wages, and the burden of proof is on the employee. The employer can rebut the claim with evidence.
Final Decision: The writ petition was dismissed, and no costs were awarded.
Dev Darshan Sud, J:- The petitioner has challenged the order of the Industrial Tribunal-cum-Labour Court, dated 16.3.2001, passed in Reference No.62 of 1997 whereby the petitioner has been ordered to be reinstated in service with full back seniority. While allowing the reference filed on behalf of the petitioner, it was ordered that he shall be entitled to 20% of the wages. There is no evidence on the record by the workman to show that he was unemployed.
2. It is now well settled that unless the employee shows that he was not gainfully employed, for which purpose the burden is on him, the workman is not entitled to any back wages.
3. The Honble Supreme Court of India in Kendriya Vidyalaya Sanghathan and Anr. Vs. S.C. Sharma, 2005 LLR 275, has held that the entitlement to back wages stands determined by the Hobble Supreme court in number i f decisions. In para-11 of the judgment in Kendriya Vidyalaya case, their Lordships have held as under: "Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard."
4. This proposition of law has been reaffirmed in U.P. State Barassware Corporation Limited and Another Vs. Uday Narain Pandey, (2006) 1 SCC 479 and State of M.P. and others Vs. Arjunlal Rajak, (2006) 2 SCC 711.
5. There is thus no merit in the writ petition, which is accordingly dismissed. There shall be no order as to costs.
