Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4208 OF 2023
(Arising out of SLP (Civil) No. 7137/2016)
Ramesh Chand … Appellant
versus
Management of Delhi Transport
Corporation … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
Leave granted.
nd
The appellant was employed as a conductor on 22
1.
June 1985 by the respondent – Delhi Transport Corporation.
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The appellant was served with a charge sheet on 8
September 1992 alleging that while discharging duties as a
Signature Not Verified
conductor on a particular route, he collected a sum of Rs.4/
Digitally signed by
Anita Malhotra
Date: 2023.07.05
16:37:52 IST
Reason:
from two passengers, but failed to issue tickets to them. After
Civil Appeal @ S.L.P. (C) No.7137 of 2016
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enquiry, the respondent passed an order of removal of the
th
appellant from service with effect from 14 June 1996.
The respondent raised an Industrial Dispute before the
2.
Labour Court and challenged the enquiry and consequent
order of removal. The Labour Court, after hearing the parties,
came to the conclusion that the enquiry was illegal.
Therefore, the Labour Court permitted the respondent to
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adduce evidence. By the award dated 17 March 2009, the
Labour Court came to the conclusion that the charge against
the appellant was not established by the respondent.
Accordingly, by the said award, the Labour Court passed an
order of reinstatement of the appellant in service. The Labour
Court was of the view that the appellant has not discharged
the burden of proving that he was not gainfully employed
from the date of removal from service. Therefore, the Labour
Court denied back wages.
3. The respondent accepted the Award of the Labour
Court. Being aggrieved by the denial of the back wages, the
appellant filed a writ petition before the learned Single Judge
of Delhi High Court. The writ petition was dismissed. Being
aggrieved by the dismissal of the writ petition, the appellant
filed an appeal before the Division Bench of the Delhi High
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Court. By the impugned judgment dated 11 December
2015, the denial of back wages has been upheld by the
Division Bench.
Civil Appeal @ S.L.P. (C) No.7137 of 2016
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th
4. Notice was issued by this Court on 18 March 2016.
We may note here that in terms of the award of the Labour
Court which was not challenged by the respondent, the
rd
appellant was reinstated in service with effect from 23 July
st
2009. He superannuated on 31 March 2020.
SUBMISSIONS
The learned senior counsel appearing for the appellant
5.
urged that even in the statement of claim filed before the
Labour Court, the appellant had specifically pleaded that he
was unemployed from the date of his removal from service.
He submitted that before the Labour Court, the appellant was
subjected to crossexamination on this aspect by the advocate
for the respondent. He would, therefore, submit that in the
facts of the case, the appellant discharged the burden on him
by proving that he did not have any employment after his
removal from service by the respondent. He submitted that
there is no evidence to the contrary and therefore, the
appellant is entitled to full back wages.
6. Learned counsel appearing for the respondent pointed
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out that before the Labour Court, on 18 July 2008, an
affidavit was filed by the appellant in which there was an
assertion that the appellant was unemployed from the date of
his termination and was not able to secure any employment.
However, the said affidavit was withdrawn and a fresh
affidavit was filed in which no such specific assertion was
Civil Appeal @ S.L.P. (C) No.7137 of 2016
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incorporated. The learned counsel would, therefore, submit
that the appellant has not discharged the burden on him of
making out of a case that he was unemployed from the date of
termination of service. As directed by this Court, he has
placed on record documents showing retiral dues paid to the
appellant and a statement incorporating the salary which he
could have drawn from the date of his termination till the date
of his reinstatement.
OUR VIEW
7. The only question before us is whether the Labour Court
was justified in denying relief of back wages. In the case of
1
National Gandhi Museum v. Sudhir Sharma , this Court
held that the fact whether an employee after dismissal from
service was gainfully employed is something which is within
his special knowledge. Considering the principle incorporated
in Section 106 of the Indian Evidence Act, 1872, the initial
burden is on the employee to come out with the case that he
was not gainfully employed after the order of termination. It is
a negative burden. However, in what manner the employee
can discharge the said burden will depend upon on peculiar
facts and circumstances of each case. It all depends on the
pleadings and evidence on record. 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.
1 (2021) 12 SCC 439
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8. Now, coming to the facts of the case, we find that in the
statement of claim filed by the appellant before the Labour
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Court on 8 August 1997, which is duly signed and verified
by him, a specific contention was raised that he was still
unemployed and has been rendered jobless. Therefore, a
contention was raised in paragraph 9 of the statement that
the appellant was entitled to back wages. Therefore, at least
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as on 8 August 1997, there is a specific case made out by
the appellant that he was not gainfully employed. The
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appellant filed an affidavit on 18 July 2008 before the
Labour Court in which he contended that he was unemployed
from the date of termination and was facing acute financial
hardship. However, the said affidavit was withdrawn and a
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fresh affidavit of evidence was filed by the appellant on 4
September 2008 in which a specific assertion regarding the
failure to get employment was not incorporated. However, he
was crossexamined on this aspect before the Labour Court
by the advocate for the management by giving a suggestion
that the appellant was earning a sufficient amount to support
his family. However, the appellant denied the correctness of
the said suggestion. Therefore, in the statement of claim filed
thirteen months after termination, a specific assertion was
made by the appellant that he was unemployed. Neither any
material has been placed by the respondent on record to show
that the appellant had a source of income nor anything
Civil Appeal @ S.L.P. (C) No.7137 of 2016
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material has been elicited by the respondent while cross
examining the respondent.
The law is very well settled. Even if Court passes an
9.
order of reinstatement in service, an order of payment of back
wages is not automatic. It all depends on the facts and
circumstances of the case. It is true that affidavit filed by the
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appellant on 18 July 2008 before the Labour Court making a
categorical statement on oath that he was not employed from
the date of termination was withdrawn and in the fresh
affidavit filed by way of evidence, such a specific contention
was not raised. But there are two factors in favour of the
appellant. In the statement of claim, it is specifically asserted
that till August 1997 when the statement of claim was filed,
the appellant found it difficult to get employment and in fact
he was unemployed. The second aspect is that there is a
crossexamination of the appellant on this issue by the
Advocate for the respondent and in the crossexamination,
the appellant denied that he had a sufficient source of income
to look after his family. 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. It is not possible to accept that for the entire
period of thirteen years, the appellant had no source of
income. However, the respondent has not come out with the
case that from the date of his removal from service, the
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appellant had another source of income. Thus, the appellant
discharged the burden on him by establishing that he was
unemployed at least till August 1997. From the chart
submitted on record by the learned counsel appearing for the
respondent, we find that the gross salary of the appellant on
the date of reinstatement was Rs.18,830/. On the date of
removal, his salary was approximately Rs.4,000/ per month.
10. We are of the view that considering the facts of the case,
it will be appropriate if a sum of Rs.3 lakhs is ordered to be
paid to the appellant in lieu of back wages. To that extent, the
appeal must succeed.
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11. Accordingly, the award of the Labour Court dated 17
March 2009 and impugned judgments of the High Courts are
modified. We direct the respondent to pay a sum of Rs.3 lakhs
to the appellant as back wages within a period of two months
from today. The appellant shall provide his account details
and a copy of a cancelled cheque of his account to the
advocate for the respondent. The amount shall be transferred
by the respondent to the bank account of the appellant within
a stipulated time of two months. In the event of failure of the
appellant to furnish details of his bank account and a copy of
the cancelled cheque to the advocate for the respondent
within a period of one month from today, it will be open to the
respondent to deposit the amount with the Labour Court.
The Labour Court shall permit the appellant to withdraw the
amount. In the event the respondent fails to pay or deposit
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the sum of Rs.3 lakhs within two months from today, the said
amount will carry interest at the rate of 9% per annum from
the date of reinstatement in service. The appeal is partly
allowed on the above terms.
…………………….J.
(Abhay S. Oka)
…………………….J.
(Rajesh Bindal)
New Delhi;
July 5, 2023.
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