The State Of Uttarakhand vs Sureshwati on 20 January, 2021


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Supreme Court of India

The State Of Uttarakhand vs Sureshwati on 20 January, 2021

Author: Hon’Ble Ms. Malhotra

Bench: L. Nageswara Rao, S. Abdul Nazeer, Hon’Ble Ms. Malhotra

                                                                        REPORTABLE

                          IN THE SUPREME COURT OF INDIA
                           CIVIL APPELLATE JURISDICTION

                           CIVIL APPEAL NO. 142 OF 2021
              (Arising out of Special Leave Petition (Civil) No. 9864 of 2020)



     STATE OF UTTARAKHAND & ORS.                                    … APPELLANTS


                                          Versus


     SMT. SURESHWATI                                               … RESPONDENT




                                   J U D G M E N T

INDU MALHOTRA, J.

Leave granted.

1. The State of Uttarakhand has filed the present Special Leave Petition to
challenge the Judgment dated 28.8.2019 passed by the High Court of
Uttarakhand in W.P. No. 3439 (M/S) of 2016, whereby the High Court has
reversed the Award passed by the Labour Court, and directed reinstatement of
the Respondent.

2. The background facts of the present case are that the Respondent was
initially engaged as an Assistant Teacher in Jai Bharat Junior High School,
Haridwar (hereinafter referred to as “the School”) during the period July, 1993 to
21.5.1994. Subsequently, she worked as a Clerk from 1.7.1994. On 25.3.1996,
the District Basic Education Officer granted approval to the appointment of the

1
Teachers, Clerk and Peon in the School, including the Respondent herein w.e.f.

1.7.1994. During this period, the School was an unaided private institution.

3. From 24th May, 2005 the School started receiving grants-in-aid from the
State, and came to be governed by the Uttaranchal School Education Act, 2006.

4. It is the case of the Appellants that the Respondent had abandoned her
service as a clerk in the School since 1.7.1997 when she got married, and shifted
to Dehradun.

5. After a period of 9 years, on 15.7.2006, the Respondent filed a complaint
before the School contending that she had worked continuously upto 07.03.2006.
She alleged that on 8th March, 2006 her services were illegally retrenched without
granting her any hearing, or payment of retrenchment compensation.

6. The School vide letter dated 21.08.2006 requested the Additional District
Education Officer (Basic), Haridwar to conduct an inquiry on the complaint made
by the Respondent.

The Basic School Inspector vide his detailed report dated 24 th August,
2006 stated that he had inspected the records of the School in the presence of
both parties. He found that the Respondent had tampered and manipulated the
date of appointment, by mentioning two different dates. The enquiry revealed that
the employment of the Respondent was illegal, since the father of the respondent
was a member of the Managing Committee, and her mother was the Chairman
employed by the School. The records revealed that the Respondent had not
worked in the School from July 1997 onwards, nor was there any leave
application received from her on the record. On account of her continuous
absence, the School engaged another clerk-Mrs. Sneh Lata in her place, who
was appointed on 17.07.2002. The Respondent never made any grievance about
her alleged termination till 2006, which was made only after the School started
receiving grants-in-aid from the State and became a Government School.

2

7. The Directorate School Education, Internal Audit Division, Uttarakhand,
Dehradun prepared an Audit Report of the School. The Audit Report dated
19.2.2008 has been placed on record. The Audit Report records the names of the
6 employees of the School, which comprised of the Principal, three Assistant
Teachers, Smt. Snehlata-clerk, and Sh. Ram Kumar Saini-Peon.

The name of the Respondent is not mentioned in the Report of February,
2008.

8. The Respondent filed a Complaint before the Labour Commissioner,
Haridwar. The Complaint was referred to the Additional Labour Commissioner to
determine whether the alleged termination of the services of the workman was
proper and/or valid. An ex-parte award was passed by the Labour Court on
05.02.2010 in favour of the employee. The said Award was challenged before the
High Court in Writ Petition No. 1853 of 2010. The High Court vide Order dated
16.09.2015 allowed the Writ Petition, and remanded the case to the Labour Court
to decide the matter de novo in accordance with law.

9. On remand, the Labour Court permitted the parties to lead detailed
evidence.

The case of the claimant / Respondent herein was that she had been in
the employment of the School from 1.7.1994 till 8.3.2006, when she was illegally
terminated, without holding any enquiry, or granting her personal hearing. She
contended that she had worked for not less than 240 days in the preceding year
before her alleged termination. Since the work was of permanent nature, she was
entitled to re-instatement with continuity of service. She placed reliance on a
copy of the letter dated 25.03.1996 issued by the then District Basic Education
Officer, who had granted approval of the employees engaged by the School. The
respondent has also placed reliance on a letter dated 20.06.2013 issued by the
Block Education Officer, Roorkee to Chief Education Officer, Haridwar requesting
for re-instatement of the respondent in compliance with the Order dated
11.8.2010 passed by the Labour Court. In the said letter it was stated that the
Respondent was on leave when the Government took over the School for grants

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in aid, due to which the Respondent had not drawn her salary. It is noted that one
Kumari Smita Saini was given appointment to the Post of clerk by the School. It
was stated that Kumari Smita Saini ought to be treated as being engaged on a
supernumerary post. It was recommended that the Respondent be permitted to
join the School in compliance with the Orders passed by the Labour Court on
5.2.2010.

In the cross-examination, the respondent has admitted that her mother
was the President of the School, and her father was a Member of the Managing
Committee at the time of her engagement in the School. She has further
admitted that there was only one Register of Attendance being maintained for all
the employees in the School. She has admitted that she got married in May,
1997 and was residing with her in-laws in Vikram Nagar, Dehradun.

10. The School filed its written statement wherein it was inter alia contended
that the claimant had since 01.07.1997 remained continuously absent from the
School, since she had got married and was residing in Dehradun. It was
specifically averred that she had never joined back the School. At that time, the
School was not receiving grants-in-aid from the State. It was submitted that the
allegation made by the claimant that her services were illegally terminated on
08.03.2006, was completely false and baseless. It was further submitted that the
School was not an “industry”, and would not be covered by the Industrial
Disputes Act
, 1947.

The School led evidence of the Head Master, two Assistant Teachers, and
Peon of the School. The Head Master refuted the allegations made by the
claimant, as being completely false and devoid of any truth. He has deposed that
the averment of the claimant that her services were allegedly terminated on
08.03.2006 without any prior notice, was false and baseless. It is the unequivocal
case of the School that the claimant had not worked after her marriage in 1997,
when she shifted to Dehradun. The School then engaged Smt. Sneh Lata on
17.7.2002 as a clerk. It was only after the School became an aided School in
2005, that she filed a false Complaint before the Assistant Labour Commissioner,
Haridwar in 2006. The enquiry conducted by the Basic School Inspector on

4
24.8.2006 revealed that she was the daughter of the President and Member of
the Managing Committee which was running the School at the time of her
engagement.

Rajinder Kumar, Assistant Teacher deposed that the allegation of the
Respondent that she was working on the post of clerk upto 08.03.2006 was
incorrect and false. The School forwarded the names of all the staff /employees
working in the School to the Government of Uttarakhand on 01.07.2005 for
approval, at the time when the grants-in-aid was started. The said list does not
contain the name of the claimant. The list contained the name of only one clerk
viz Sneh Lata.

Ram Kumar Saini-the Peon in the School deposed that the Respondent
was initially appointed as a teacher, and later on worked as a Clerk. It was stated
that the teachers appointed to the School, were required to have the qualification
of B.Ed. and Teacher training.

11. The Labour Court vide Award dated 22.08.2016 answered the reference
against the Claimant/Respondent herein. It was held that the claimant was not
entitled to get any relief as there was sufficient evidence adduced by the
Management to prove her continued absence from the School since 01.07.1997.
The claimant failed to produce any evidence to prove that she had been
terminated on 08.03.2006. The onus to prove the alleged illegal termination was
on the workman. The applicant failed to summon the Attendance Register and
the Accounts Books of the School to prove that she had been continuously
working till 08.03.2006. Consequently, she failed to discharge the onus of her
employment till 8.3.2006. After the School started receiving grants-in-aid, she
filed the present application after over 9 years. The contention of the claimant
that her appointment had been illegally terminated on 08.03.2006 was unreliable,
and devoid of any truth. It was held that the claimant had concealed material
facts, and had not approached the Court with clean hands.

12. Aggrieved by the Judgment of the Labour Court, the Respondent filed W.P.

No. 3439 of 2016 before the High Court. The learned Single Judge of the High

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Court allowed the Writ Petition on the Singular ground that the employer had
admitted in the cross-examination that no enquiry was conducted, or disciplinary
proceedings initiated regarding the abandonment of service by the employee.
Even though the School had submitted in the written statement that the
employee had abandoned her job in 1997, there was no such plea to the contrary
with respect to the dispensation of her service on 08.03.2006.

13. We have heard the learned Counsel for the parties, and perused the
record. We find that the High Court has set aside the Award dated 22.8.2016
passed by the Labour Court on the sole ground that no disciplinary enquiry was
held by the School regarding her alleged abandonment of service.

14. This Court has in a catena of decisions held that where an employer has
failed to make an enquiry before dismissal or discharge of a workman, it is open
for him to justify the action before the Labour Court by leading evidence before it.
The entire matter would be open before the tribunal, which would have the
jurisdiction to satisfy itself on the evidence adduced by the parties whether the
dismissal or discharge was justified.

A four Judge Bench of this Court in Workmen of the Motipur Sugar
Factory Private Ltd. v. Motipur Sugar Factory1
held that :

“ 11. It is now well settled by a number of decisions of this Court that where an
employer has failed to make an enquiry before dismissing or discharging a workman
it is open to him to justify the action before the tribunal by leading all relevant
evidence before it. In such a case the employer would not have the benefit which he
had in cases where domestic enquiries have been held. The entire matter would be
open before the tribunal which will have jurisdiction not only to go into the limited
questions open to a tribunal where domestic enquiry has been property held
(see Indian Iron & Steel Co. v. Workmen2 ) but also to satisfy itself on the facts
adduced before it by the employer whether the dismissal or discharge was justified.

We may in this connection refer to Sana Musa Sugar Works (P) Limited v. Shobrati
Khan3
, Phulbari Tea Estate v. Workmen4 , and Punjab National Bank
5
Limited v. Workmen
. These three cases were further considered by this Court
in Bharat Sugar Mills Limited v. Jai Singh6 , and reference was also made to the
decision of the Labour Appellate Tribunal in Ram Swarath Sinha v. Belsund Sugar

1 AIR 1965 SC 1803.

2 AIR: 1958 SC 130.

3 AIR 1959 SC 923.

4 AIR 1959 SC 1111.

5 AIR 1960 SC 160.

6 (1962) 3 SCR 684.

6

Co.7 . It was pointed out that “the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only whether there was a
prima facie case but would decide for itself on the evidence adduced whether the
charges have really been made out”. It is true that three of these cases,
except Phulbari Tea Estate case , were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no difference whether the
matter comes before the tribunal for approval under Section 33 or on a reference
under Section 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing Orders, the entire
case would be open before the tribunal and the employer would have to justify on
facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate
case was on a reference under Section 10, and the same principle was applied there
also, the only difference being that in that case there was an inquiry though it was
defective. A defective enquiry in our opinion stands on the same footing as no
enquiry and in either case the tribunal would have jurisdiction to go into the facts and
the employer would have to satisfy the tribunal that on facts the order of dismissal or
discharge was proper.”

Subsequently in Delhi Cloth and General Mills Co. v. Ludh Budh
Singh8
this Court held that :

“(1) If no domestic enquiry had been held by the management, or if the management
makes it clear that it does not rely upon any domestic enquiry that may have been
held by it, it is entitled to straightway adduce evidence before the Tribunal justifying
its action. The Tribunal is bound to consider that evidence so adduced before it, on
merits, and give a decision thereon. In such a case, it is not necessary for the
Tribunal to consider the validity of the domestic enquiry as the employer himself does
not rely on it.

….

(3) When the management relies on the enquiry conducted by it, and also
simultaneously adduces evidence before the Tribunal, without prejudice to its plea
that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first
instance, to consider whether the enquiry proceedings conducted by the
management, are valid and proper. If the Tribunal is satisfied that the enquiry
proceedings have been held properly and are valid, the question of considering the
evidence adduced before it on merits, no longer survives. It is only when the Tribunal
holds that the enquiry proceedings have not been properly held, that it derives
jurisdiction to deal with the merits of the dispute and in such a case it has to consider
the evidence adduced before it by the management and decide the matter on the
basis of such evidence.

Reliance is also placed on the judgment of this Court in Workmen of
Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of
Firestone Tyre & Rubber Co. of India (P) Ltd and Others
. 9 wherein the broad
principle regarding holding of the enquiry were spelt out as:

“32. From those decisions, the following principles broadly emerge:

7 (1954) LAC 697.

8 (1972) 1 SCC 595.

9 (1973) 1 SCC 813.

7

“(1) The right to take disciplinary action and to decide upon the quantum of
punishment are mainly managerial functions, but if a dispute is referred to a Tribunal,
the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper
enquiry in accordance with the provisions of the Standing Orders, if applicable, and
principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of
misconduct is a plausible conclusion flowing from the evidence, adduced at the said
enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the
employer as an appellate body. The interference with the decision of the employer
will be justified only when the findings arrived at in the enquiry are perverse or the
management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is
found to be defective, the Tribunal in order to satisfy itself about the legality and
validity of the order, had to give an opportunity to the employer and employee to
adduce evidence before it. It is open to the employer to adduce evidence for the first
time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not
have to consider only whether there was a prima facie case. On the other hand, the
issue about the merits of the impugned order of dismissal or discharge is at large
before the Tribunal and the latter, on the evidence adduced before it, has to decide
for itself whether the misconduct alleged is proved. In such cases, the point about the
exercise of managerial functions does not arise at all. A case of defective enquiry
stands on the same footing as no enquiry.

(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first
time in justification of the action taken only, if no enquiry has been held or after the
enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without
anything more, direct reinstatement of a dismissed or discharged employee, once it
is found that no domestic enquiry has been held or the said enquiry is found to be
defective.

(8) An employer, who wants to avail himself of the opportunity of adducing evidence
for the first time before the Tribunal to justify his action, should ask for it at the
appropriate stage. If such an opportunity is asked for, the Tribunal has no power to
refuse. The giving of an opportunity to an employer to adduce evidence for the first
time before the Tribunal is in the interest of both the management and the employee
and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or
by the evidence placed before a Tribunal for the first time, punishment imposed
cannot be interfered with by the Tribunal except in cases where the punishment is so
harsh as to suggest victimisation.

(10) In a particular case, after setting aside the order of dismissal, whether a
workman should be reinstated or paid compensation is, as held by this Court
in Management of Panitole Tea Estate v. Workmens10 within the judicial decision of a
Labour Court or Tribunal.

……….

40. Therefore, it will be seen that both in respect of cases where a domestic enquiry
has been held as also in cases where the Tribunal considers the matter on the
evidence adduced before it for the first time, the satisfaction under Section 11-A,
about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has
to consider the evidence and come to a conclusion one way or other. Even in cases
where an enquiry has been held by an employer and a finding of misconduct arrived
at, the Tribunal can now differ from that finding in a proper case and hold that no
misconduct is proved.

10 (1971) 1 SCC 742.

8

41. We are not inclined to accept the contentions advanced on behalf of
the employers that the stage for interference under Section 11-A by the Tribunal is
reached only when it has to consider the punishment after having accepted the
finding of guilt recorded by an employer. It has to be remembered that a Tribunal may
hold that the punishment is not justified because the misconduct alleged and found
proved is such that it does not warrant dismissal or discharge The Tribunal may also
hold that the order of discharge or dismissal is not justified because the alleged
misconduct itself is not established by the evidence. To come to a conclusion either
way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may
hold that the misconduct itself is not proved or that the misconduct proved does not
warrant the punishment of dismissal or discharge. That is why, according to us,
Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy
itself on both these points. Now the jurisdiction of the Tribunal to reappraise the
evidence and come to its conclusion enures to it when it has to adjudicate upon the
dispute referred to it in which an employer relies on the findings recorded by him in a
domestic enquiry. Such a power to appreciate the evidence and come to its own
conclusion about the guilt or otherwise was always recognised in a Tribunal when it
was deciding a dispute on the basis of evidence adduced before it for the first time.
Both categories are now put on a par by Section 11-A.”

15. We have perused the Award passed by the Labour Court, and find that a
full opportunity was given to the parties to lead evidence, both oral and
documentary, to substantiate their respective case. The High Court has not even
adverted to the said evidence, and has disposed of the Writ Petition on the sole
ground that the School had not conducted a disciplinary enquiry before
discharging the respondent from service. The School has led sufficient evidence
before the Labour Court to prove that the Respondent had abandoned her
service from 01.07.1997 when she got married, and moved to another District,
which was not denied by her in her evidence. The record of the School reveals
that she was not in employment of the School since July 1997.

16. The initial employment of the Respondent as a teacher from July 1993 to
21.5.1994 was itself invalid, since she was only inter-mediate (as reflected in the
letter dated 25.3.1996 issued by the District Basic Education Officer, Haridwar),
and did not have the B.Ed. degree, which was the minimum qualification to be
appointed as a teacher.

17. The Respondent has failed to prove that she had worked for 240 days
during the year preceding her alleged termination on 8.3.2006. She has merely
made a bald averment in her affidavit of evidence filed before the Labour Court. It
was open to the Respondent to have called for the records of the School i.e. the

9
Attendance Register and the Accounts, to prove her continuous employment till
8.3.2006. Since the School was being administered by the Government of
Uttarakhand from 2005 onwards, she could have produced her Salary Slips as
evidence of her continuous employment upto 08.03.2006. However, she failed to
produce any evidence whatsoever to substantiate her case.

The reliance placed by the Respondent on the letter dated 20.6.2013 from
the Block Development Officer, Roorkee cannot be relied upon. The letter
acknowledges that the Respondent was on leave when the Government took
over the School, and started receiving grants in aid. The Block Development
Officer’s recommendation to the Chief Education Officer, Haridwar to act in
compliance with the Order dated 5.2.2010 passed by the Labour Court cannot be
relied on, as the Award dated 5.2.2010 was set aside by the High Court.

18. On the basis of the evidence led before the Labour Court, we hold that the
School has established that the Respondent had abandoned her service in 1997,
and had never reported back for work.

The Respondent has failed to discharge the onus to prove that she had
worked for 240 days’ in the preceding 12 months prior to her alleged termination
on 8.3.2006. The onus was entirely upon the employee to prove that she had
worked continuously for 240 days’ in the twelve months preceding the date of her
alleged termination on 8.3.2006, which she failed to discharge.

A division bench of this Court in Bhavnagar Municipal Corpn. v. Jadeja
Govubha Chhanubha11
held that :

“7. It is fairly well-settled that for an order of termination of the services of a workman
to be held illegal on account of non-payment of retrenchment compensation, it is
essential for the workman to establish that he was in continuous service of the
employer within the meaning of Section 25-B of the Industrial Disputes Act, 1947. For
the respondent to succeed in that attempt he was required to show that he was in
service for 240 days in terms of Section 25-B(2)(a)(ii). The burden to prove that he
was in actual and continuous service of the employer for the said period lay squarely
on the workman. The decisions of this Court in Range Forest Officer v. S.T.

Hadimani 12, Municipal Corpn., Faridabad v. Siri Niwas 13, M.P. Electricity
14
Board v. Hariram
, Rajasthan State Ganganagar S. Mills Ltd. v. State of
Rajasthan15
,: 2004 SCC (L&S) 1055] , Surendranagar District

11 (2014) 16 SCC 130.

12 (2002) 3 SCC 25.

13 (2004) 8 SCC 195.

14 (2004) 8 SCC 246.

15 (2004) 8 SCC 161.

10

Panchayat v. Jethabhai Pitamberbhai16,and R.M. Yellatti v. Executive
17
Engineer
unequivocally recognise the principle that the burden to prove that the
workman had worked for 240 days is entirely upon him. So also the question whether
an adverse inference could be drawn against the employer in case he did not
produce the best evidence available with it, has been the subject-matter of
pronouncements of this Court in Municipal Corpn., Faridabad v. Siri Niwas and M.P.
Electricity Board v. Hariram [M.P. Electricity Board
v. Hariram, , reiterated in RBI v. S.
Mani18. This Court has held that only because some documents have not been
produced by the management, an adverse inference cannot be drawn against it.”

19. In view of the aforesaid discussion, we allow the present Appeal, and set
aside the Judgment of the High Court. The Award dated 22.8.2016 is restored.

There will be not Order as to Costs.

Pending applications, if any, are accordingly disposed of.

………………………………………………J.

(L. NAGESWARA RAO)

………………………………………………J.

(NAVIN SINHA)

………………………………………………J.

(INDU MALHOTRA)

New Delhi;

January 20, 2021.

16 (2005) 8 SCC 450.

17 (2006) 1 SCC 106.

18 (2005) 5 SCC 100.

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