A dismissed employee, whose services have been reinstated by a court, can claim back wages only after proving that he was not gainfully employed during the period of dismissal, but not as a right, the Supreme Court has said.
A bench of Justices A M Sapre and S A Nazeer said the employer was also entitled to prove against the employee that he was gainfully employed during the period and was hence not entitled to claim any back wages.
It, however, made it clear that the "initial burden" to prove this was on the employee.
"In other words, a workman has no right to claim back wages from his employer as a right only because the Court has set aside his dismissal order in his favor and directed his reinstatement in service," the bench said.
"It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family," it said.
"The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. The initial burden is, however, on the employee," the bench said.
The order came on two cases, including that of one Phool Chand, a driver with the Rajasthan State Road Transport Corporation, who was dismissed from service on the alleged ground of "continuous absence" from work. In the other case, 37 workers were dismissed from the public health and engineering department of Rajasthan.
In its verdict, the top court also said that in some cases, the court may decline to award the back wages in its entirety, but in some others, it may award it partially "by exercising its judicial discretion in the light of the facts and evidence."
"The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies, were elaborately discussed in several cases by this court," it said.