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2021 (9) TMI 1523 - SC - Indian LawsCancellation of compensatory leave for adjudication to the Industrial Tribunal - whether the Appellant can be allowed to raise a contention that it is not an Industry within the meaning of I.D. Act? - HELD THAT:- After considering the fact of loss of confidence in the employee and a long time gap, this Court granted compensation of Rs. 15 lakhs in full and final settlement to the employee without granting reinstatement. In the said case before this Court, there was no inquiry held for establishing misconduct. A finding was recorded that the acts of employee prima facie constitute misconduct. In our view, considering the aims and object of the Appellant and the serious nature of misconduct proved against the Respondent, instead of granting reinstatement, by balancing the conflicting interests, appropriate compensation needs to be awarded. Moreover, considering the nature of the misconduct proved against the Respondent, the grant of reinstatement will not be in the interest of justice. The long gap of 17 years will be also one of the considerations for not granting reinstatement especially considering the nature of the activities of the Appellant and the conduct of the Respondent. In the case of Talwara Cooperative Credit and Service Society Ltd. [2008 (10) TMI 731 - SUPREME COURT], this Court has held that the fact whether an employee after dismissal was gainfully employed is within his special knowledge and therefore, considering the principles laid down in Section 106 of the Indian Evidence Act, 1872, the burden is on the employee to come out with a case that he was not gainfully employed during the relevant period. In the present case, at no stage, even such a plea has been made by the Respondent. Even in the counter filed to these appeals, no such statement has been made. The amount of back wages payable up to June, 2010 was deposited in this Court. The said amount of Rs. 4,43,380/- has been withdrawn by the Respondent in the year 2010. From the year 2004, when order of compulsory retirement was passed, the Respondent has not worked with the Appellant. Moreover, he has not even pleaded that from the date of the compulsory retirement till date, he was not gainfully employed. The Respondent has used the amount of Rs. 4,43,380/- for the last 11 years. His gross salary in the year 2004 was Rs. 5788/- per month. Taking overall view of the various factual aspects which we have discussed above, we find that compensation in the range of Rs. 6,50,000/- to Rs. 7,00,000/- in lieu of reinstatement will be just and proper in the facts of the case. Thus, after taking into consideration the sum of Rs. 4,43,380/- already received by the Respondent, a sum of Rs. 2,50,000/- will be payable by the Appellant to the Respondent. The appeals allowed in part by setting aside the order of reinstatement of the Respondent and the order of payment of back wages to the Respondent - the Appellant further directed to pay total compensation of Rs. 6,50,000/- to the Respondent inclusive of the sum of Rs. 4,43,380/- already paid to the Respondent.
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