TMI Blog2021 (9) TMI 1523X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 The said amount of Rs. 4,43,380/- has been withdrawn by the Respondent in the year 2010.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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to be decided in these appeals is whether the Appellant is an industry within the meaning of I.D. Act. He placed reliance on a decision of this Court in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978) 2 SCC 213. The learned Counsel urged that the Appellant has no income and it only depends on the Government grants and donations for its activities. He submitted that by no stretch of imagination, the Appellant is an industry. Moreover, considering the conduct of the Respondent of assaulting a senior official of the Appellant, as well as the acts of violence, indiscipline and insubordination and considering the fact that for a period of 17 years, the Respondent is not working with the Appellant, the order of reinstatement is not at all justified. It is a case of loss of confidence and therefore, his continuation in service would result in encouraging gross indiscipline. (b) The learned Senior Counsel appearing for the Appellant further submitted that the Appellant is not a profit making entity or a business concern. Moreover, it is not even charitable or philanthropic arm of a company or a business entity. He submitted that Appellant is a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of compulsory retirement. (g) Lastly, he relied upon another decision of this Court in the case of Reetu Marbles v. Prabhakant Shukla (2010) 2 SCC 70. He submitted that order of payment of back wages cannot be mechanically passed after the order of termination is declared to be illegal. 4. Shri Mukti Bodh, the learned Counsel appearing for the Respondent made following submissions: (a) He pointed out that not only that the Appellant did not raise a contention that it is not an industry within the meaning of I.D. Act, but filed an application for approval Under Sub-section 2(b) of Section 33 of the I.D. Act. Though the Respondent objected to the withdrawal of the same, at its own risk, the Appellant withdrew the said application. He submitted that before the learned Single Judge, no such contention was raised. Even in the appeal before the Division Bench, such contention was not raised and that the same was belatedly raised for the first time in Review Petition. He would, therefore, submit that the Appellant cannot be allowed to agitate the said contention. (b) He relied upon a decision of this Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or challenging the order of compulsory retirement, the said contention was not raised though the Writ Petition remained pending for four years. Even in the appeal before the Division Bench of Delhi High Court against the decision in the writ petition, the said contention was not raised. It was raised for the first time by making an application for review of the impugned Judgment and Order of the Division Bench. Whether the Appellant is an industry or not is not a pure question of law. In a given case, it may require adjudication on factual issues. Considering the aforesaid facts, the Appellant cannot be allowed to agitate the same in the present appeals. However, we make it clear that the issue is not concluded and the said issue will remain open which can be agitated by the Appellant in the event any proceedings are taken by any other employee. As the issue that the Appellant is not an industry cannot be allowed to be agitated, there is no reason to interfere with the finding that the Order of compulsory retirement by way of penalty was illegal due to non-compliance with the requirement of obtaining approval. 6. The order of compulsory retirement passed against the Appellant wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt factors borne out by the record were glossed over by the High Court. 8. In the case of Talwara Cooperative Credit and Service Society Ltd. (supra), 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. We must note that whether such burden is discharged or not is an issue to be decided in the facts of each case. The issue has to be decided by taking into consideration the entire material on record. 9. 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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