Right of a terminated employee under the Industrial Disputes Act to seek reinstatement and back wages for wrongful termination of services.
Introduction
This article covers the aspect of gainful employment after termination/dismissal from services and whose burden it is to prove, that whether the employee is gainfully employed elsewhere or not after dismissal etc. This issue is a contentious one and there are several contrary judgements. The question that comes to the forefront after the recent judgment of the Supreme Court in the case of National Gandhi Museum v. Sudhir Sharma and others (Civil Appeal Nos. 8215-8216 of 2011) is that whether gainful employment after dismissal from service is a relevant factor to determine the right of such employee to challenge whether that the termination is lawful.
Burden of Proof – Gainful Employment After Dismissal
Deepali Kundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324
In this case, the Supreme Court held that the employer has to prove that after dismissal, the employee was not gainfully employed. The Bench’s reasoning behind this judgement is that a person cannot be called to prove negative facts against themselves. This reasoning holds significant weightage as no one will prove their negative point that may be used against them. The Bench also noted that it’s easy to prove a positive point but difficult to prove negative points.
National Gandhi Museum v. Sudhir Sharma and others
Recently, in the case of the National Gandhi Museum, the Supreme Court adopted a different stance through this judgement. The Bench held that it is an employee’s duty or burden to prove that after dismissal from the workplace, she/he is not gainfully employed or not. It was also held that the issue of gainful employment varies from case to case.
The bench relied on the judgment of Talwara Cooperative Credit and Service Society Ltd v. Sushil Kumar, where it was held that “the fact whether an employee after dismissal was gainfully employed is within his special knowledge and therefore, considering the principles laid down in section 106 of the Indian Evidence Act, 1872, the burden is on the employee to come out with a case that he was not gainfully employed during the relevant period”. At the same time, it also held that the question of burden to prove gainful employment is an issue to be decided as per the facts of each case.
Kendriya Vidyalaya Sangathan vs S.C. Sharma (2005 (2) SCC 363)
In this case, the Supreme Court held that the initial burden is on the employee to show that she/he was not gainfully employed and after that, the employer can bring materials/proof to rebut the claim of the employee. A closer analysis of this judgment reveals that the burden is placed on both the parties, initially on the employee and then on the employer. However, at the same time, this option is available in every case wherein the other party has the option to rebut the claim with proof.
Critical Analysis & Conclusion
Gainful employment after dismissal from the workplace is not a relevant factor to determine the right of an employee. Determination of this issue on the basis that after dismissal, an employee is gainfully employed on not, curtails the rights of such employee. If only based on gainful employment, the employee is not able to prove that, he/she was unlawfully terminated, this curtails the rights of such employee and a change in this position would be a positive step.
We have seen several judgements apart from the above mentioned that have adopted contrary stands and there is no single thumb rule as such with respect to whose burden it is to prove that, after dismissal employee was gainfully employed elsewhere or not. Gainful employment after dismissal from the workplace, should not be the factor in determining the rights of any such employee.
There is no clear law to deal with cases of dismissal of employee and burden of proof to exercise right of reinstatement and back-wages. In the above-mentioned cases, some cases placed the burden on employees and in the recent case i.e., National Gandhi Museum v. Sudhir Sharma and others, the bench held that it is the employee’s duty to prove, whether after dismissal he/she is gainfully employed or not. At the same time, some cases talk about the burden of proof being on the employer. There is no clear line to distinguish the aspect of burden.
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