TATE OF UTTARAKHAND & ORS. versus SMT. SURESHWATI on 20 January 2021

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

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2. The background facts of the present case are that theRespondent was initially engaged as an Assistant Teacher in Jai BharatJunior High School, Haridwar (hereinafter referred to as “the School”)during the period July, 1993 to 21.5.1994. Subsequently, she worked as aClerk from 1.7.1994. On 25.3.1996, the District Basic Education Officergranted approval to the appointment of the Teachers, Clerk and Peon inthe School, including the Respondent herein w.e.f. 1.7.1994. During thisperiod, the School was an unaided private institution.

3. From 24[th] May, 2005 the School started receiving grants-in-aidfrom the State, and came to be governed by the Uttaranchal SchoolEducation Act, 2006.

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

5. After a period of 9 years, on 15.7.2006, the Respondent filed acomplaint before the School contending that she had worked continuouslyupto 07.03.2006. She alleged that on 8[th] March, 2006 her services wereillegally retrenched without granting her any hearing, or payment ofretrenchment compensation.

6. The School vide letter dated 21.08.2006 requested the AdditionalDistrict Education Officer (Basic), Haridwar to conduct an inquiry onthe 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 inthe presence of both parties. He found that the Respondent had tamperedand manipulated the date of appointment, by mentioning two differentdates. The enquiry revealed that the employment of the Respondentwas illegal, since the father of the respondent was a member of theManaging Committee, and her mother was the Chairman employed bythe School. The records revealed that the Respondent had not workedin the School from July 1997 onwards, nor was there any leave applicationreceived from her on the record. On account of her continuous absence,the School engaged another clerk-Mrs. Sneh Lata in her place, whowas appointed on 17.07.2002. The Respondent never made any grievanceabout her alleged termination till 2006, which was made only after theSchool started receiving grants-in-aid from the State and became aGovernment School.

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A7. The Directorate School Education, Internal Audit Division,Uttarakhand, Dehradun prepared an Audit Report of the School. TheAudit Report dated 19.2.2008 has been placed on record. The AuditReport records the names of the 6 employees of the School, whichcomprised of the Principal, three Assistant Teachers, Smt. Snehlata-clerk, and Sh. Ram Kumar Saini-Peon.B

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

8. The Respondent filed a Complaint before the LabourCommissioner, Haridwar. The Complaint was referred to the AdditionalCLabour Commissioner to determine whether the alleged termination ofthe services of the workman was proper and/or valid. An ex-parte awardwas 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 PetitionNo. 1853 of 2010. The High Court vide Order dated 16.09.2015 allowedthe Writ Petition, and remanded the case to the Labour Court to decideDthe matter de novo in accordance with law.

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

The case of the claimant / Respondent herein was that she hadEbeen in the employment of the School from 1.7.1994 till 8.3.2006, whenshe was illegally terminated, without holding any enquiry, or granting herpersonal hearing. She contended that she had worked for not less than240 days in the preceding year before her alleged termination. Since thework was of permanent nature, she was entitled to re-instatement withcontinuity of service. She placed reliance on a copy of the letter datedF25.03.1996 issued by the then District Basic Education Officer,who hadgranted approval of the employees engaged by the School. The respondenthas also placed reliance on a letter dated 20.06.2013 issued by the BlockEducation Officer, Roorkee to Chief Education Officer, Haridwarrequesting for re-instatement of the respondent in compliance with theGOrder dated 11.8.2010 passed by the Labour Court. In the said letter itwas stated that the Respondent was on leave when the Governmenttook over the School for grants in aid, due to which the Respondent hadnot drawn her salary. It is noted that one Kumari Smita Saini was givenappointment to the Post of clerk by the School. It was stated that KumariSmita Saini ought to be treated as being engaged on a supernumeraryH

post. It was recommended that the Respondent be permitted to join theSchool in compliance with the Orders passed by the Labour Court on5.2.2010.

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

10. The School filed its written statement wherein it was inter aliacontended that the claimant had since 01.07.1997 remained continuouslyabsent from the School, since she had got married and was residing inDehradun. It was specifically averred that she had never joined backthe School. At that time, the School was not receiving grants-in-aid fromthe State. It was submitted that the allegation made by the claimant thather services were illegally terminated on 08.03.2006, was completelyfalse 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 AssistantTeachers, and Peon of the School. The Head Master refuted theallegations made by the claimant, as being completely false and devoidof any truth. He has deposed that the averment of the claimant that herservices were allegedly terminated on 08.03.2006 without any prior notice,was false and baseless. It is the unequivocal case of the School that theclaimant had not worked after her marriage in 1997, when she shifted toDehradun. The School then engaged Smt. Sneh Lata on 17.7.2002 as aclerk. It was only after the School became an aided School in 2005, thatshe filed a false Complaint before the Assistant Labour Commissioner,Haridwar in 2006. The enquiry conducted by the Basic School Inspectoron 24.8.2006 revealed that she was the daughter of the President andMember of the Managing Committee which was running the School atthe time of her engagement.

Rajinder Kumar, Assistant Teacher deposed that the allegation ofthe Respondent that she was working on the post of clerk upto 08.03.2006was incorrect and false. The School forwarded the names of all the AB

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Astaff /employees working in the School to the Government of Uttarakhandon 01.07.2005 for approval, at the time when the grants-in-aid wasstarted. The said list does not contain the name of the claimant. The listcontained the name of only one clerk viz Sneh Lata.

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

11. The Labour Court vide Award dated 22.08.2016 answeredthe reference against the Claimant/Respondent herein. It was held thatCthe claimant was not entitled to get any relief as there was sufficientevidence adduced by the Management to prove her continued absencefrom the School since 01.07.1997. The claimant failed to produce anyevidence to prove that she had been terminated on 08.03.2006. Theonus to prove the alleged illegal termination was on the workman. Theapplicant failed to summon the Attendance Register and the AccountsDBooks of the School to prove that she had been continuously working till08.03.2006. Consequently, she failed to discharge the onus of heremployment till 8.3.2006. After the School started receiving grants-in-aid, she filed the present application after over 9 years. The contentionof the claimant that her appointment had been illegally terminated onE08.03.2006 was unreliable, and devoid of any truth. It was held that theclaimant had concealed material facts, and had not approached the Courtwith clean hands.

12. Aggrieved by the Judgment of the Labour Court, theRespondent filed W.P. No. 3439 of 2016 before the High Court. TheFlearned Single Judge of the High Court allowed the Writ Petition on theSingular ground that the employer had admitted in the cross-examinationthat no enquiry was conducted, or disciplinary proceedings initiatedregarding the abandonment of service by the employee. Even thoughthe School had submitted in the written statement that the employee hadabandoned her job in 1997, there was no such plea to the contrary withGrespect to the dispensation of her service on 08.03.2006.

13. We have heard the learned Counsel for the parties, and perusedthe record. We find that the High Court has set aside the Award dated22.8.2016 passed by the Labour Court on the sole ground that nodisciplinary enquiry was held by the School regarding her allegedHabandonment of service.

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

A four Judge Bench of this Court in Workmen of the MotipurSugar Factory Private Ltd. v. Motipur Sugar Factory[1]held that:

“ 11. It is now well settled by a number of decisions of this Courtthat where an employer has failed to make an enquiry beforedismissing or discharging a workman it is open to him to justifythe action before the tribunal by leading all relevant evidence beforeit. In such a case the employer would not have the benefit whichhe had in cases where domestic enquiries have been held. Theentire matter would be open before the tribunal which will havejurisdiction not only to go into the limited questions open to a tribunalwhere domestic enquiry has been property held (see Indian Iron& Steel Co. v. Workmen[2] ) but also to satisfy itself on the factsadduced before it by the employer whether the dismissal ordischarge was justified. We may in this connection refer to SanaMusa Sugar Works (P) Limited v. Shobrati Khan[3] , PhulbariTea Estate v. Workmen[4] , and Punjab National BankLimited v. Workmen[5] . These three cases were further consideredby this Court in Bharat Sugar Mills Limited v. Jai Singh[6] , andreference was also made to the decision of the Labour AppellateTribunal in Ram Swarath Sinha v. Belsund Sugar Co.[7] . It waspointed out that “the important effect of omission to hold an enquirywas merely this: that the tribunal would not have to consider onlywhether there was a prima facie case but would decide for itselfon the evidence adduced whether the charges have really beenmade out”. It is true that three of these cases, except Phulbari 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.

7 (1954) LAC 697.

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ATea Estate case , were on applications under Section 23 of theIndustrial Disputes Act, 1947. But in principle we see no differencewhether the matter comes before the tribunal for approval underSection 33 or on a reference under Section 10 of the IndustrialDisputes Act, 1947. In either case if the enquiry is defective or ifno enquiry has been held as required by Standing Orders, theBentire case would be open before the tribunal and the employerwould have to justify on facts as well that its order of dismissal ordischarge was proper. Phulbari Tea Estate case was on areference under Section 10, and the same principle was appliedthere also, the only difference being that in that case there was anCinquiry though it was defective. A defective enquiry in our opinionstands on the same footing as no enquiry and in either case thetribunal would have jurisdiction to go into the facts and the employerwould have to satisfy the tribunal that on facts the order of dismissalor discharge was proper.”

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DSubsequently in Delhi Cloth and General Mills Co. v. LudhBudh Singh[8 ]this Court held that :

“(1) If no domestic enquiry had been held by the management, orif the management makes it clear that it does not rely upon anydomestic enquiry that may have been held by it, it is entitled toEstraightway adduce evidence before the Tribunal justifying itsaction. The Tribunal is bound to consider that evidence so adducedbefore it, on merits, and give a decision thereon. In such a case, itis not necessary for the Tribunal to consider the validity of thedomestic enquiry as the employer himself does not rely on it.

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(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 considerGwhether the enquiry proceedings conducted by the management,are valid and proper. If the Tribunal is satisfied that the enquiryproceedings have been held properly and are valid, the questionof considering the evidence adduced before it on merits, no longersurvives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdictionto deal with the merits of the dispute and in such a case it has toconsider the evidence adduced before it by the management anddecide the matter on the basis of such evidence.

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

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

“(1) The right to take disciplinary action and to decide upon thequantum of punishment are mainly managerial functions, but if adispute is referred to a Tribunal, the latter has power to see ifaction of the employer is justified.

(2) Before imposing the punishment, an employer is expected toconduct a proper enquiry in accordance with the provisions of theStanding 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 thefinding of misconduct is a plausible conclusion flowing from theevidence, adduced at the said enquiry, the Tribunal has nojurisdiction to sit in judgment over the decision of the employer asan appellate body. The interference with the decision of theemployer will be justified only when the findings arrived at in theenquiry 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 theenquiry held by him is found to be defective, the Tribunal in orderto satisfy itself about the legality and validity of the order, had togive an opportunity to the employer and employee to adduceevidence before it. It is open to the employer to adduce evidencefor the first time justifying his action, and it is open to the employeeto adduce evidence contra.

(5) The effect of an employer not holding an enquiry is that theTribunal would not have to consider only whether there was a A

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prima facie case. On the other hand, the issue about the merits ofthe impugned order of dismissal or discharge is at large beforethe Tribunal and the latter, on the evidence adduced before it, hasto decide for itself whether the misconduct alleged is proved. Insuch cases, the point about the exercise of managerial functionsdoes not arise at all. A case of defective enquiry stands on thesame footing as no enquiry.

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(6) The Tribunal gets jurisdiction to consider the evidence placedbefore it for the first time in justification of the action taken only,if no enquiry has been held or after the enquiry conducted by anemployer is found to be defective.

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(7) It has never been recognised that the Tribunal shouldstraightaway, without anything more, direct reinstatement of adismissed or discharged employee, once it is found that no domesticenquiry has been held or the said enquiry is found to be defective.

D(8) An employer, who wants to avail himself of the opportunity ofadducing evidence for the first time before the Tribunal to justifyhis action, should ask for it at the appropriate stage. If such anopportunity is asked for, the Tribunal has no power to refuse. Thegiving of an opportunity to an employer to adduce evidence forthe first time before the Tribunal is in the interest of both theEmanagement and the employee and to enable the Tribunal itself tobe satisfied about the alleged misconduct.

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(9) Once the misconduct is proved either in the enquiry conductedby an employer or by the evidence placed before a Tribunal forthe first time, punishment imposed cannot be interfered with byFthe Tribunal except in cases where the punishment is so harsh asto 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 TeaGEstate v. Workmens[10] within the judicial decision of a LabourCourt or Tribunal.

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STATE OF UTTARAKHAND & ORS. v. SMT. SURESHWATI[INDU MALHOTRA, J.]

40. Therefore, it will be seen that both in respect of cases wherea domestic enquiry has been held as also in cases where theTribunal considers the matter on the evidence adduced before itfor the first time, the satisfaction under Section 11-A, about theguilt or otherwise of the workman concerned, is that of the Tribunal.It has to consider the evidence and come to a conclusion one wayor other. Even in cases where an enquiry has been held by anemployer and a finding of misconduct arrived at, the Tribunal cannow differ from that finding in a proper case and hold that nomisconduct is proved.

41. We are not inclined to accept the contentions advanced onbehalf of the employers that the stage for interference underSection 11-A by the Tribunal is reached only when it has to considerthe punishment after having accepted the finding of guilt recordedby an employer. It has to be remembered that a Tribunal may holdthat the punishment is not justified because the misconduct allegedand found proved is such that it does not warrant dismissal ordischarge The Tribunal may also hold that the order of dischargeor dismissal is not justified because the alleged misconduct itselfis not established by the evidence. To come to a conclusion eitherway, the Tribunal will have to re-appraise the evidence for itself.Ultimately it may hold that the misconduct itself is not proved orthat the misconduct proved does not warrant the punishment ofdismissal or discharge. That is why, according to us, Section 11-Anow gives full power to the Tribunal to go into the evidence andsatisfy itself on both these points. Now the jurisdiction of theTribunal to reappraise the evidence and come to its conclusionenures to it when it has to adjudicate upon the dispute referred toit in which an employer relies on the findings recorded by him in adomestic enquiry. Such a power to appreciate the evidence andcome to its own conclusion about the guilt or otherwise was alwaysrecognised in a Tribunal when it was deciding a dispute on thebasis of evidence adduced before it for the first time. Bothcategories are now put on a par by Section 11-A.”

15. We have perused the Award passed by the Labour Court, andfind that a full opportunity was given to the parties to lead evidence, bothoral and documentary, to substantiate their respective case. The High AB

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ACourt has not even adverted to the said evidence, and has disposed ofthe Writ Petition on the sole ground that the School had not conducted adisciplinary enquiry before discharging the respondent from service. TheSchool has led sufficient evidence before the Labour Court to prove thatthe Respondent had abandoned her service from 01.07.1997 when shegot married, and moved to another District, which was not denied by herBin her evidence. The record of the School reveals that she was not inemployment of the School since July 1997.

16. The initial employment of the Respondent as a teacher fromJuly 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 BasicCEducation Officer, Haridwar), and did not have the B.Ed. degree, whichwas the minimum qualification to be appointed as a teacher.

17. The Respondent has failed to prove that she had worked for240 days during the year preceding her alleged termination on 8.3.2006.She has merely made a bald averment in her affidavit of evidence filedDbefore the Labour Court. It was open to the Respondent to have calledfor the records of the School i.e. the Attendance Register and theAccounts, to prove her continuous employment till 8.3.2006. Since theSchool was being administered by the Government of Uttarakhand from2005 onwards, she could have produced her Salary Slips as evidence ofEher continuous employment upto 08.03.2006. However, she failed toproduce any evidence whatsoever to substantiate her case.

The reliance placed by the Respondent on the letter dated20.6.2013 from the Block Development Officer, Roorkee cannot be reliedupon. The letter acknowledges that the Respondent was on leave whenFthe Government took over the School, and started receiving grants inaid. The Block Development Officer’s recommendation to the ChiefEducation Officer, Haridwar to act in compliance with the Order dated5.2.2010 passed by the Labour Court cannot be relied on, as the Awarddated 5.2.2010 was set aside by the High Court.

G18. On the basis of the evidence led before the Labour Court, wehold that the School has established that the Respondent had abandonedher service in 1997, and had never reported back for work.

The Respondent has failed to discharge the onus to prove thatshe had worked for 240 days’ in the preceding 12 months prior to her H

STATE OF UTTARAKHAND & ORS. v. SMT. SURESHWATI[INDU MALHOTRA, J.]

alleged termination on 8.3.2006. The onus was entirely upon theemployee to prove that she had worked continuously for 240 days’ in thetwelve 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 Chhanubha[11]held that :

“7. It is fairly well-settled that for an order of termination of theservices of a workman to be held illegal on account of non-paymentof retrenchment compensation, it is essential for the workman toestablish that he was in continuous service of the employer withinthe meaning of Section 25-B of the Industrial Disputes Act, 1947.For the respondent to succeed in that attempt he was required toshow 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 andcontinuous service of the employer for the said period lay squarelyon the workman. The decisions of this Court in Range ForestOfficer v. S.T. Hadimani[12], Municipal Corpn.,Faridabad v. Siri Niwas[13], M.P. ElectricityBoard v. Hariram[14], Rajasthan State Ganganagar S. MillsLtd. v. State of Rajasthan[15],: 2004 SCC (L&S) 1055], Surendranagar District Panchayat v. JethabhaiPitamberbhai[16],and R.M. Yellatti v. ExecutiveEngineer[17] unequivocally recognise the principle that the burdento prove that the workman had worked for 240 days is entirelyupon him. So also the question whether an adverse inference couldbe drawn against the employer in case he did not produce thebest evidence available with it, has been the subject-matter ofpronouncements of this Court in Municipal Corpn.,Faridabad v. Siri Niwas and M.P. ElectricityBoard v. Hariram [M.P. Electricity Board v. Hariram,,reiterated in RBI v. S. Mani[18]. This Court has held that only 11 (2014) 16 SCC 130.12 (2002) 3 SCC 25.13 (2004) 8 SCC 195.14 (2004) 8 SCC 246.15 (2004) 8 SCC 161.16 (2005) 8 SCC 450.17 (2006) 1 SCC 106.18 (2005) 5 SCC 100.

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180SUPREME COURT REPORTS

Abecause some documents have not been produced by themanagement, 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 22.8.2016is restored.

BThere will be not Order as to Costs.

Pending applications, if any, are accordingly disposed of.

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Appeal allowed.

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