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1 - 10 of 23 (0.35 seconds)Article 226 in Constitution of India [Constitution]
Section 11A in The Industrial Disputes Act, 1947 [Entire Act]
U.P. State Brassware Corpn. Ltd. & Anr vs Udai Narain Pandey on 8 December, 2005
13. This Court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Evidence Act, the burden would be on the workman. The burden, however, is a negative one. If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the employee concerned was in fact gainfully employed. In Surinder Kumar [(2006) 5 SCC 173 : 2006 SCC (L&S) 967] , this Court held: (SCC p. 177, paras 12-14)
"12. The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250 : JT (2005) 10 SC 344] and State of M.P. v. Arjunlal Rajak [(2006) 2 SCC 711 : 2006 SCC (L&S) 429].)
U.P. State Road Transport Corporation vs State Of U.P. And Another on 29 November, 2004
32. Reliance is further placed to the same end upon the decisions of a Division Bench of this Court in Syed Vakil Ahmad vs. State of U.P. and another, 2010 (125) FLR 49; another in U.P.S.E.B. vs. Sri Brahm Singh, 2006 (110) FLR 97, which is again a decision of this Court; the decision of this Court in U.P.S.R.T.C. vs. State of U.P. and another, 2007 (114) FLR 169; and the decision in U.P.S.R.T.C. vs. State of U.P. and another, 2008 (119) FLR 489.
Section 25F in The Industrial Disputes Act, 1947 [Entire Act]
General Manager, Haryana Roadways vs Rudhan Singh on 14 July, 2005
9. For the purpose of grant of back wages, one of the relevant factors would indisputably be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after termination of his service. Some of the other relevant factors in this behalf have been noticed by this Court in Haryana Roadways v. Rudhan Singh [(2005) 5 SCC 591 : 2005 SCC (L&S) 716], stating: (SCC p. 596, para 8)
"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year."
Talwara Coop.Credit &Service Society ... vs Sushil Kumar on 1 October, 2008
31. He has further placed reliance upon a decision of the Supreme Court in Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, where in paragraphs 8, 9 12 & 13 of the report, it has been held:
Correspondent, St. Michael vs V.N. Karpaga Mary & Ors on 24 April, 2008
(See also St. Michael's Teacher's Training Institute v. V.N. Karpaga Mary [(2008) 7 SCC 388 : (2008) 6 Scale 621].)
State Of M.P. & Ors vs Arjunlal Rajak on 24 February, 2006
13. This Court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Evidence Act, the burden would be on the workman. The burden, however, is a negative one. If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the employee concerned was in fact gainfully employed. In Surinder Kumar [(2006) 5 SCC 173 : 2006 SCC (L&S) 967] , this Court held: (SCC p. 177, paras 12-14)
"12. The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250 : JT (2005) 10 SC 344] and State of M.P. v. Arjunlal Rajak [(2006) 2 SCC 711 : 2006 SCC (L&S) 429].)