Case: PRADEEP S/O RAJKUMAR JAIN Vs. MANGANESE ORE(INDIA) LIMITED &amp; ORS

: 2005 SCC (L&S) 609].) 14. It is also a trite law that only because some documents have not been produced by the management, an adverse inference would not be drawn against the management. (See S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609].) In fact, the said judgment has made reference to the judgment reported in Manager R.B.I. Bangalore v. S. Mani & Ors. (2005) 05 SCC 100 for what is stated in para 13. 10. We do not find, in fact, any reference to Section 106 of the Evidence Act being made in Manager R.B.I. Bangalore (supra). It is true, however, that in the judgment reported in Municipal Council Sujanpur v. Surinder Kumar (2006) 5 SCC 173, there is a reference made to Section 106 of the Evidence Act and in the manner in which it is stated in paragraph 13 it is quoted also in Talwara Cooperative Credit and Service Society Ltd. (supra). There is an earlier judgment of this Court rendered by a Bench of three learned Judges which is reported in Shambhu Nath Goyal v. Bank of Baroda and Others (1983) 4 SCC 491 which has dealt with the issue in the following words: ……………………………………………………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to rake up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman was gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated February 8, 1979 in an industrial dispute which arose so early as in 1965. ………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………. It is, undoubtedly, true when the question arises as to whether the backwages is to be given and as to what is to be the extent of backwages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase (supra). In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal / malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court. 11. As far as the present case is concerned, the reason given by the High Court in the impugned order for denying backwages clearly does not appeal to us. According to the appellant, the appellant has indeed stated that he was not working. The case of the respondent is that he was a Chartered Accountant and that he was indeed earning. The learned counsel for the appellant does not deny that the appelant was indeed earning some amount from doing accountancy related work and he had filed returns under the Income Tax Act. This means as things stand before us, it is a case where the appellant must be treated as not having been without any income at all during the period. He was earning. We have also, however, noticed that there was hardly any worthwhile reason for the respondent to terminate the services. The impugned order itself shows that there was no basis for termination of the services of the appellant. When the appellant was qualified and particularly, when the appellant also has a case that all this was done for the reason that he had taken up certain issues relating to the manner in which the affairs of the respondent was being run, we would think that the High Court was in error in not making appropriate order relating to backwages. 12. As regards the quantum of backwages, there are conflicting claims. According to the respondent, if what is described as performance allowance is not added, 100 per cent of the backwages which the appellant would be entitled to would be in the region of about Rs.66 lakhs. The appellants claim is for over Rs.3 crores. However, he would, after getting instructions from his client state that the appellant may be given a sum of Rs.1.5 crores. He, particularly, points out that this is without taking into consideration the benefits of notional promotion. We are not delving more into this issue as it is stated that litigation relating to right to notational promotion is pending consideration before the High Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. We notice that it is true that in Talwara Cooperative Credit and Service Society Ltd. (supra), this Court has held inter alia: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].)13. Equally well settled is the principle that the burden of proof, having regard to the principles analogous to Section 106 of the Evidence Act that he was not gainfully employed, was on the workman. (See RBI v. S. Mani [(2005) 5 SCC 100  : 2005 SCC (L&S) 609].)14. It is also a trite law that only because some documents have not been produced by the management, an adverse inference would not be drawn against the management. (See S. Mani [(2005) 5 SCC 100  : 2005 SCC (L&S) 609].)In fact, the said judgment has made reference to the judgment reported in Manager R.B.I. Bangalore v. S. Mani & Ors. (2005) 05 SCC 100 for what is stated in para 13.10. We do not find, in fact, any reference to Section 106 of the Evidence Act being made in Manager R.B.I. Bangalore (supra). It is true, however, that in the judgment reported in Municipal Council Sujanpur v. Surinder Kumar (2006) 5 SCC 173,  there is a reference made to Section 106 of the Evidence Act and in the manner in which it is stated in paragraph 13 it is quoted also in Talwara Cooperative Credit and Service Society Ltd. (supra).There is an earlier judgment of this Court rendered by a Bench of three learned Judges which is reported in Shambhu Nath Goyal v. Bank of Baroda and Others (1983) 4 SCC 491  which has dealt with the issue in the following words:The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to rake up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman was gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated February 8, 1979 in an industrial dispute which arose so early as in 1965.It is, undoubtedly, true when the question arises as to whether the backwages is to be given and as to what is to be the extent of backwages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase (supra). In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal / malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court.11. As far as the present case is concerned, the reason given by the High Court in the impugned order for denying backwages clearly does not appeal to us. According to the appellant, the appellant has indeed stated that he was not working. The case of the respondent is that he was a Chartered Accountant and that he was indeed earning. The learned counsel for the appellant does not deny that the appelant was indeed earning some amount from doing accountancy related work and he had filed returns under the Income Tax Act. This means as things stand before us, it is a case where the appellant must be treated as not having been without any income at all during the period. He was earning. We have also, however, noticed that there was hardly any worthwhile reason for the respondent to terminate the services. The impugned order itself shows that there was no basis for termination of the services of the appellant. When the appellant was qualified and particularly, when the appellant also has a case that all this was done for the reason that he had taken up certain issues relating to the manner in which the affairs of the respondent was being run, we would think that the High Court was in error in not making appropriate order relating to backwages.12. As regards the quantum of backwages, there are conflicting claims. According to the respondent, if what is described as performance allowance is not added, 100 per cent of the backwages which the appellant would be entitled to would be in the region of about Rs.66 lakhs. The appellants claim is for over Rs.3 crores. However, he would, after getting instructions from his client state that the appellant may be given a sum of Rs.1.5 crores. He, particularly, points out that this is without taking into consideration the benefits of notional promotion.We are not delving more into this issue as it is stated that litigation relating to right to notational promotion is pending consideration before the High Court.