TaxTMI 
TaxTMI 
2021 (9) TMI 1523
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion. Another object of the Trust was to propagate his messages and teachings of truth and non-violence. (b) Gandhi Smarak Sangrahalaya Samiti was incorporated and registered under the Societies Registration Act, 1860. The Museum (National Gandhi Museum) is being managed by Gandhi Smarak Sangrahalaya 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 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 Tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on was rejected. By the impugned Judgment and Order dated 30th 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. SUBMISSIONS 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. (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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as 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 Kumar (2008) 9 SCC 486. 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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....econdly, 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 rem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lancing 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 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 b....