Burden of proof for proving gainful employment lies on the workman and not on employer.

M.D., Balasaheb Desai Sahakari S.K.Ltd


Kashinath Ganapati Kambale

Facts of the Case:
Appellant a Co-operative Society named M.D. Balasaheb Desai Sahakari S.K. Ltd. runs a sugar factory. Respondent named Kashinath Ganapati Kambale was appointed as a peon therein.He was found guilty for his unauthorized stay in the premises of the company, misbehaving with superiors, leaving place of work early without permission and without leave and signing the muster despite being absent.

Appellant issued him a show cause notice followed by a suspension order. A charge-sheet was framed and pursuant to departmental proceedings, he was held guilty and consequently was dismissed from service.

Respondent filed a suit in Labour Court, Sangli alleging for his reinstatement with continuity of service and full back-wages.The Labour Court held the respondent guilty for committing misconduct but passed an award for reinstatement with continuity of service with 50% back-wages.The appeal before High Court challenging the decision of subordinate court was dismissed, pursuant to which appellant approached Supreme Court with special leave petition.

The Hon’ble Supreme Court allowed the petition in part. The Hon’ble Court held that forfeiture of 50% back-wages was not an adequate punishment. The court was of opinion that in this case, no back-wages should have been awarded in favour of the respondent and burden of proof to show that the workman was not gainfully employed is not on employer but on workman.


Source: Labour Law Reporter, pg. no. 230, Supreme Court of India, March 2009.


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