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KSHITIJ SHAILENDRA
Shyam Kishore Pandey – Appellant
Versus
Presiding Officer – Respondent
| Table of Content |
|---|
| 1. details of petitioner's employment and award (Para 2 , 3 , 5) |
| 2. arguments on entitlement to back-wages (Para 4 , 6 , 8) |
| 3. employer's rebuttal regarding gainful employment (Para 9 , 10) |
| 4. initial burden on employee to prove non-employment (Para 11 , 12 , 15) |
| 5. writ petition dismissal and court order (Para 17) |
JUDGMENT
Kshitij Shailendra, J.
Heard Shri Bharat Singh Pal, learned counsel for the petitioner, learned Standing Counsel for the respondent No. 1, Shri Tarun Agarwal, learned counsel for respondent No. 2 and perused the record.
2. The petitioner Shyam Kishore Pandey was a workman in respondent No. 2, which is a Sugar Mill. Admittedly, he has died during the pendency of writ petition and is substituted by his wife and son as petitioner Nos. 1/1 and 1/2.
3. The challenge has been made to the award dated 21.01.1998, whereby the Presiding Officer of the Labour Court has directed reinstatement of the petitioner in service with salary and other allowances with effect from the date of the award with an observation that the petitioner shall not be entitled for salary and back-wages for the period during which he had not worked.
4. The limited challenge made in the pres
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.
Reinstatement in service – Even if Court passes order of reinstatement in service, order of payment of back wages is not automatic – It all depends on facts and circumstances of case.
A petitioner must prove non-employment post-retrenchment to claim back wages after reinstatement.
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.....
Workmen must prove lack of gainful employment to claim back wages upon reinstatement; full back wages are not an automatic entitlement.
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.
In order to claim backwages, the workman must prove with evidence that he was not gainfully employed after dismissal.
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