Employment burden of proof after dismissal ‘on the employee’


The Supreme Court, in the 24 September judgment of National Gandhi Museum v Sudhir Sharma, observed that whether an employee after dismissal was gainfully employed was within his special knowledge and, therefore, considering the principles laid down in section 106 of the Indian Evidence Act, 1872, the burden was on the employee to come out with a case that he was not gainfully employed during the relevant period.

The museum was appealing a 31 August 2009 Delhi High Court judgment that directed it to reinstate with back wages an employee who was sent into compulsory retirement.

The appellant submitted that the onus was on the respondent to plead and prove that he was not gainfully employed from the date of the order of compulsory retirement. The counsel submitted that, as the respondent has not discharged the burden on him, he was not entitled to claim back wages.

The court held that whether such burden was discharged or not was an issue to be decided on the facts of each case.

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The dispute digest is compiled by Numen Law Offices, a multi-disciplinary law firm based in New Delhi & Mumbai. The authors can be contacted at support@numenlaw.com. Readers should not act on the basis of this information without seeking professional legal advice.