Report No. 179

7.27 Burden of proof in certain cases: (Proposed section 14).-

In the United States of America, in the federal statute of 1989, there is a specific provision, as stated in Chapter VI, that the burden of proving that the action or proceeding which is the subject of victimization, would have been taken even if no such disclosure was made by the applicant (applicant in the application under section 10) shall be upon the public servant or the public authority against whom the allegations of victimization are made.

In fact, before such a provision was made in USA, the burden of proof to prove the nexus between the act of victimization and the disclosure was placed on the employee and such a procedure did not yield any results in rendering justice to the person who made the disclosure. That was why the law was modified by shifting the burden of proof to the employer. 109

We have also stated in Chapter VI that even in UK, where the employee has taken action under section 57 of the Employment Protection (Consolidation) Act, 1978, alleging unfair dismissal, the burden of proof is on the employer.

On the same lines as in the USA and in UK, we recommend that in the proposed section 15, the burden of proof shall be on the public servant or public authority against whom the allegations of victimization are made before the Competent Authority, to establish that the same action would have been taken or the same proceedings would have been issued against the public servant making the disclosure, even if he had made no such disclosure.