Ravi"What are the necessary facts to be pleaded by a terminated employee to enable him to get back wages?"15-09-2014
Ans : An employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
Ravi"Is a worker wrongfully terminated entitled to reinstatement with continuity of service and back wages?"15-09-2014
Ans : In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. However, the aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
Parvathi VT"When entitled for compensation, if a workman, has an option to chose between ESI Act and Workmen’s Compensation Act, which one should he/she opt for? Which will be a more beneficial compensation?"15-09-2014
Ans : The ESI compensation is more beneficial and substantial. The only drawback it has is that the payment will not be in lump-sum, but periodical.