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SUPREME COURT OF INDIA
AJAY RASTOGI, ABHAY S. OKA, JJ.
National Gandhi Museum – Appellant
Versus
Sudhir Sharma – Respondent
Civil Appeal Nos. 8215-8216 of 2011
Decided On : 24-09-2021
Industrial Disputes Act, 1947 – Section 33(2)(b) – Compulsory retirement – Reinstatement in service – Considering nature of misconduct proved against respondent, grant of reinstatement will not be in interest of justice – Long gap of 17 years will be also one of considerations for not granting reinstatement especially considering nature of activities of appellant and conduct of respondent – Burden is on employee to come out with a case that he was not gainfully employed during relevant period – Whether such burden is discharged or not is an issue to be decided in facts of each case – Issue has to be decided by taking into consideration entire material on record – At no stage, even such a plea has been made by respondent – Respondent has used amount of Rs. 4,43,380/- for last 11 years – His gross salary in year 2004 was Rs. 5788/- per month – Compensation in range of Rs. 6,50,000/- to Rs.7,00,000/- in lieu of reinstatement will be just and proper in facts of the case – Order of reinstatement of respondent and order of payment of back wages to respondent set aside – Appellant directed to pay total compensation of Rs. 6,50,000/- to respondent inclusive of sum of Rs. 4,43,380/- already paid to respondent. (Paras 7, 8, 9, 12 and 13)
Facts of the case:
Appellant has taken an exception to the Judgment and Order dated 30th November 2009 delivered by a Division Bench of the High Court in Letters Patent Appeal No. 602/2009 and the Order dated 12th March 2010 by which the application made by the appellant for review of Judgment and Order dated 30th November 2009 has been rejected.
Findings of Court:
The object for which the said society was established and activities admittedly carried out by the appellant will have to be borne in mind as one of the factors for deciding the quantum of compensation which can be granted to the respondent in lieu of reinstatement. The appellant is carrying on noble activities of propagating the thoughts of Father of Nation by using the corpus given by the Government and by utilizing donations and sale proceeds of small articles.
Result : Appeals Partly allowed.
The Supreme Court emphasized that awarding back wages should not be a mechanical or automatic process. Instead, it is essential for the employee to demonstrate that they made genuine efforts to secure employment or were genuinely unemployed during the relevant period. If the employee fails to establish such efforts or prove their unemployment, the entitlement to back wages should be denied. This approach ensures that back wages are awarded based on the actual circumstances and conduct of the employee, promoting fairness and justice in employment disputes (!) .
JUDGMENT :
ABHAY S. OKA, J.
1. National Gandhi Museum is the appellant in these appeals. The appellant has taken an exception to the Judgment and Order dated 30th November 2009 delivered by a Division Bench of the High Court in Letters Patent Appeal No. 602/2009 and the Order dated 12th March 2010 by which the application made by the appellant for review of the Judgment and Order dated 30th November 2009 has been rejected.
FACTUAL CONTROVERSY
2. With a view to appreciate the controversy, a brief reference to the facts of the case will be necessary:
(b) Gandhi Smarak Sangrhalaya Samiti was incorporated and registered under the Societies Registration Act, 1860. The Museum (National Gandhi Museum) is being managed by Gandhi Smarak Sangrhalaya Samiti (for short “the said Society”).
(c) On 24th December 1996, the respondent was appointed as a Museum Assistant by the appellant. In the year 2002, the appellant issued an Office Order cancelling the option of compensatory leave against the extra attendance and provided for extra emoluments for extra attendance. The respondent objected to the said Circular. It is alleged by the appellant that on 27th December 2003, the respondent assaulted its Assistant Director and thus committed misconduct. Accordingly, a charge sheet was served upon the respondent. A writ petition was filed by the appellant for challenging the charge-sheet.
(d) During the pendency of the said petition, on the basis of the dispute raised by the respondent and another employee, the appropriate Government referred the dispute regarding cancellation of compensatory leave for adjudication to the Industrial Tribunal.
(e) The Writ Petition filed by the respondent for challenging the charge sheet was heard on 12th July 2004 and was disposed of by granting a liberty to the respondent to challenge the Inquiry Report in the event the same be adverse to him. Inquiry Report was submitted by the Inquiry Officer holding that the respondent was guilty of acts of subordination, creating a scene, causing disturbance to others in performance of their duty and causing violence in the office. By the Office Order dated 16th September 2004, the appellant imposed penalty of compulsory retirement on the respondent. On 8th December 2004, the appellant filed an application before the Industrial Tribunal at Delhi in accordance with sub-section 2(b) of Section 33 of the Industrial Tribunal Act, 1947 (for short “I.D. Act”). The application was filed for seeking approval for imposing the penalty. However, the appellant applied for withdrawal of the said application to which an objection was raised by the respondent. The application for withdrawal was made on the ground that since it was a case of compulsory retirement, it was not necessary to obtain approval in terms of sub-section 2(b) of the Section 33 of the I.D. Act. By the order dated 8th December 2004, the application made by the appellant for grant of approval was dismissed as withdrawn.
(f) The respondent filed Writ Petition No. 10211/2005 before the Delhi High Court for a declaration that the Office Order dated 16th September 2004 by which the penalty of compulsory retirement was imposed, was null and void on account of the failure to obtain approval under sub-section 2(b) of Section 33 of the I.D. Act. In the meanwhile, on 9th September 2005, the Industrial Tribunal disposed of the reference made earlier at the instance of the respondent on the basis of a statement made by the appellant that the workmen shall not be assigned any duty on second Sundays, Gazetted Holidays, and National Holidays.
(g) By the Judgment and
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