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Supreme Court of India
National Gandhi Museum vs Sudhir Sharma on 24 September, 2021
Author: Ajay Rastogi
Bench: Ajay Rastogi, Abhay S. Oka
1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 8215-8216 OF 2011 NATIONAL GANDHI MUSEUM …… APPELLANT v. SUDHIR SHARMA …… RESPONDENT J U D G M E N T
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 30 th
November 2009 delivered by a Division Bench of the High Court in
Letters Patent Appeal No. 602/2009 and the Order dated 12 th March
2010 by which the application made by the appellant for review of the
Judgment and Order dated 30th November 2009 has been rejected.
2. With a view to appreciate the controversy, a brief reference to the
facts of the case will be necessary:
Signature Not Verified
Digitally signed by
(a) In the year 1949, the Working Committee of the Indian National
Congress executed a Deed of Declaration of a Trust in the name of
Gandhi Smarak Nidhi with the main object of maintaining a Museum for
preserving relics, books, articles and things associated with the Father of
the Nation. Another object of the Trust was to propagate his messages
and teachings of truth and non-violence.
(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 27 th 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 16 th
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 16 th
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 Order dated 31st August 2009, the learned
Single Judge of the Delhi High Court allowed Writ Petition No.
10211/2005 and directed the appellant to reinstate the respondent in
service with back wages. Being aggrieved by the said Judgment and
Order, an appeal was preferred by the appellant. In the meanwhile, the
appellant applied for a clarification of the Judgment and Order dated 31 st
August 2009 which application was rejected. By the impugned
Judgment and Order dated 30 th November 2009, a Division Bench of
Delhi High Court dismissed the appeal. Even a review petition seeking a
review of the Judgment and Order of the Division Bench was rejected.
3. The submissions made by Shri Sunil Gupta, the learned senior
counsel appearing for the appellant are summarized as under:
(a) The learned senior counsel appearing for the appellant submitted
that the first question 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.1 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 in-
subordination 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 part of the
said society dedicated to propagation of Gandhian teachings and
1 (1978) 2 SCC 213
(c) The learned senior counsel appearing for the appellant submitted
that the appellant did not exercise the option provided by the learned
Single Judge of the Delhi High Court by initiating fresh proceedings
against the respondent as the appellant wanted to test the issue whether
it is an industry.
(d) He submitted that the onus was on the respondent to plead and
prove that he was not gainfully employed from the date of the order of
compulsory retirement. The learned senior counsel further submitted that
as the respondent has not discharged the burden on him, he is
disentitled to claim back wages. He pointed that in terms of the interim
Order dated 10th May 2010 of this Court, entire amount of back wages
payable as on that date amounting to Rs. 4,43,380/- was deposited by
the appellant and the said amount has been withdrawn by the
respondent. He submitted that as the appellant depends on Government
grants and donations from the members of the public, any amount
ordered to be paid to the respondent would be at the cost of the public
interest. He submitted that the payment of any amount to the respondent
will amount to his unjust enrichment.
(e) The learned senior counsel appearing for the appellant relied upon
a decision of the Apex Court in the case of Indian Railway
Construction Co. Ltd. v. Ajay Kumar2. By relying on this decision, he
submitted that considering the misconduct proved against the
respondent, it will be unjust to allow his reinstatement. Without prejudice
to earlier contentions raised by him, the learned senior counsel urged
that a reasonable compensation can be granted to the respondent in lieu
of reinstatement. He pointed out that the respondent has withdrawn the
sum of Rs. 4,43,380/- deposited by the appellant in this Court in the year
2010. He submitted that the respondent has enjoyed interest on the said
amount and therefore, no further amount should be directed to be paid.
(f) The learned senior counsel appearing for the appellant relied upon
another decision of this Court in the case of Talwara Cooperative
Credit and Service Society Ltd. v. Sushil Kumar3. He submitted that
as laid down by this Court, the respondent ought to have discharged the
burden on him by showing that he was not gainfully employed after the
order of compulsory retirement.
(g) Lastly, he relied upon another decision of this Court in the case of
Reetu Marbles v. Prabhakant Shukla4. He submitted that order of
payment of back wages cannot be mechanically passed after the order
of termination is declared to be illegal.
2 (2003) 4 SCC 579
3 (2008) 9 SCC 486
4 (2010) 2 SCC 70
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. Ram Gopal Sharma and Ors.5
He submitted that the order of compulsory retirement of the respondent
by way of punishment amounts to discharge or dismissal by way of
punishment and therefore, in absence of approval under sub-section
2(b) of Section 33 of the I.D. Act, the respondent shall be deemed to
have been continued in the employment. He submitted that the appellant
was aware of the fact that the approval was required and therefore, an
5 (2002) 2 SCC 244
application for grant of approval was made which was unconditionally
withdrawn. He would submit that there is absolutely no error in the order
of reinstatement passed by the learned Single Judge, which is confirmed
by the Division Bench.
(c) About the back wages, he urged that it was never the case made
out by the appellant that the respondent was gainfully employed. The
learned counsel for the respondent, therefore, submitted that no
interference is called for with the impugned Judgment and Order.
CONSIDERATION OF SUBMISSIONS
5. We have given careful consideration to the submissions. The first
question to be answered is whether the appellant can be allowed to
raise a contention that it is not an Industry within the meaning of I.D. Act.
For more than one reason, we are not inclined to consider the contention
raised by the appellant that it is not an industry within the meaning of I.D.
Act. The first reason is that the appellant at all material times proceeded
on the footing that it is an industry within the meaning of the provisions
of the I.D. Act. In fact, an application was made by the appellant for grant
of prior approval as provided in sub-section 2(b) of Section 33 of the I.D.
Act before the Industrial Tribunal. The appellant applied for withdrawal of
the said application on the ground that prior approval for compulsory
retirement was not required. Notwithstanding the opposition by the
respondent, the said application was allowed to be withdrawn.
Secondly, an industrial dispute was raised at the instance of the
respondent on the demand for compensatory leave in lieu of the work
done by the employees on holidays. An award was made in the said
industrial dispute by the Industrial Tribunal. The contention that the
appellant was not an industry was not raised in the said proceedings and
in fact, a settlement award was passed in the dispute. Thirdly, in the Writ
Petition filed by the respondent for 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
was set aside on the ground that an approval under sub-section 2(b) of
Section 33 of the I.D. Act was not obtained by the appellant. The
respondent did not raise any industrial dispute for challenging the
outcome of the inquiry. The Inquiry Officer concluded that the charge of
assaulting the Assistant Director of the appellant was proved against the
respondent. The impugned order of compulsory retirement was passed
on 16th September 2004. Therefore, here is a case where a serious
misconduct was established against the respondent and the said finding
of the Inquiry Officer has not been disturbed on merits by the High Court.
7. As mentioned earlier, the object of the appellant is to propagate the
philosophy of the Father of the Nation and to preserve the personal
relics, manuscripts, books and other material regarding the Father of the
Nation. Now the question is whether the respondent should be
reinstated. It is necessary to refer to a decision of this court in the case
of Indian Railway Construction Co. Ltd. (supra). In paragraph 29 of
the said decision, this Court held thus:
“29. Here, the alleged acts have not been
disbelieved by the High Court. They are prima
facie acts of misconduct. Therefore, the employer
can legitimately raise a plea of losing confidence
in the employee, warranting his non-continuance
in the employment. The time-gap is another
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. All these
relevant factors borne out by the record were glossed over by the High
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 date of the compulsory retirement till date, he
was not gainfully employed.
10. We may note here that in the Writ Petition filed by the
respondent, he himself has pleaded the nature of activities conducted
by the appellant. In fact, he has relied upon a brochure published by
the appellant giving all the details. In the second paragraph of the Writ
Petition filed by the respondent, he has stated thus:
“That the respondent management is managed by the
Gandhi Smarak Sangrahalaya Samiti which is a registered
society under the Societies Registration Act, 1860. The
respondent management keep and preserve personal
relics, Manuscripts, books, journals, documents relating
to the life, philosophy and work of Gandhiji. It also sell
books and literature (over 1400 titles, audio and video
cassettes, CDs, films, picture cards, posters, framed
photographs, and presentation items such as key rings,
pens and figurines – related to Mahatma Gandhi, India’s
freedom movement and allied subjects and
philosophies. Government of India has provided land
where it is situated. Its main financial support is a
corpus fund of Rs.50 million provided by the
Government of India and interest on the said corpus
fund is utilized for management of the respondent
Museum. Besides it there is income from sale of books,
literature etc., and donations and contributions received
from public and other institutions. A copy of the pamphlet
containing its purpose and activities is enclosed as Annexure
11. The object for which the said society was established and the
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
the Father of Nation by using the corpus given by the Government and
by utilizing donations and sale proceeds of small articles.
12. 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.
13. Hence, we partly allow the appeals by setting aside the order of
reinstatement of the respondent and the order of payment of back
wages to the respondent. We further direct the appellant 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. We direct the appellant to
pay the amount of Rs. 2,50,000/- to the respondent by a demand
draft/Account Payee cheque within a period of six weeks from today.
On the failure to pay the amount within six weeks from today, the amount
will carry interest at the rate of 12% p.a. from the date of this Judgment.
There will be no order as to costs.
(ABHAY S. OKA)
September 24, 2021.