TATE OF UTTARAKHAND & ORS.versusSMT. SURESHWATI

166                       [2021]
               SUPREME COURT     1 S.C.R. 166
                              REPORTS                     [2021] 1 S.C.R.


A                   STATE OF UTTARAKHAND & ORS.
                                       v.
                             SMT. SURESHWATI
                         (Civil Appeal No. 142 of 2021)
B                             JANUARY 20, 2021
                  [L. NAGESWARA RAO, NAVIN SINHA,
                        INDU MALHOTRA, JJ.]
            Labour Laws
C            Industrial Disputes Act, 1947 – s. 25-B – Complaint – Alleging
      illegal retrenchment of service – Complainant initially appointed as
      Assistant Teacher in a private school and worked as such for a
      period of about 11 months (from July 1993 to 21.5.1994) –
      Thereafter, worked as a Clerk (from 1.7.1994 till 1.7.1997 i.e. when
      she abandoned the service) – In the year 2005 the school started
D
      receiving Grants-in-Aid and hence came to be governed by
      Uttaranchal School Education Act, 2006 – Complaint was filed
      before the school after 9 years i.e. on 15.7.2006 alleging
      retrenchment of her service on 8.3.2006 illegally – The School
      Inspector, after inquiry in his report stated that the complainant
E     had not worked in the school since July 1997, nor was there any
      leave application from her on the record – In complaint before
      Labour Court, award was passed against the complainant – Writ
      Petition against the award was allowed on the sole ground that no
      disciplinary proceedings were initiated regarding abandonment of
      service – Appeal to Supreme Court – Held: The onus was entirely
F
      on the complainant to prove that she had worked for 240 days in
      the preceding 12 months prior to her alleged termination, which
      she failed to discharge – The school has duly established that she
      had abandoned her service in 1997.
            Allowing the appeal, the Court
G
             HELD : 1. 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,

H
                                      166
  STATE OF UTTARAKHAND & ORS. v. SMT. SURESHWATI                      167


which would have the jurisdiction to satisfy itself on the evidence   A
adduced by the parties whether the dismissal or discharge was
justified. [Para 14][173-A-B]
      Workmen of the Motipur Sugar Factory Private Ltd. v.
      Motipur Sugar Factory AIR 1965 SC 1803: [1965] 3
      SCR 588; Delhi Cloth and General Mills Co. v. Ludh              B
      Budh Singh (1972) 1 SCC 595 : [1972] 3 SCR 29;
      Workmen of Firestone Tyre & Rubber Co. of India (P)
      Ltd. v. The Management of Firestone Tyre & Rubber
      Co. of India (P) Ltd and Others (1973) 1 SCC 813:
      [1973] 3 SCR 587 – relied on.
                                                                      C
       2. On perusal of the Award passed by the Labour Court, it
is clear that a full opportunity was given to the parties to lead
evidence, both oral and documentary, to substantiate their
respective cases. The High Court has not even adverted to the
said evidence, and has disposed of the Writ Petition of the
respondent on the sole ground that the School had not conducted       D
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     E
of the School reveals that she was not in employment of the School
since July 1997. [Para 15][177-G-H; 178-A-B]
      3. 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      F
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. [Para 16][178-C]
      4. The respondent has failed to prove that she had worked
for 240 days during the year preceding her alleged termination        G
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
Attendance Register and the Accounts, to prove her continuous

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168             SUPREME COURT REPORTS                      [2021] 1 S.C.R.


A     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 onus was entirely upon the employee to prove that she
B
      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. It is, therefore, held that the School has
      established that the Respondent had abandoned her service in
      1997, and had never reported back for work. [Paras 17 and
C     18][178-D-E; 179-A]
              Bhavnagar Municipal Corpn. v. Jadeja Govubha
              Chhanubha (2014) 16 SCC 130 : [2014] 14 SCR 879
              – relied on.
                              Case Law Reference
D
      [1965] 3 SCR 588                relied on               Para 14
      [1972] 3 SCR 29                 relied on               Para 14
      [1973] 3 SCR 587                relied on               Para 14
      [2014] 14 SCR 879               relied on               Para 18
E
              CIVIL APPELLATE JURISDICTION : Civil Appeal No. 142 of
      2021.
            From the Judgment and Order dated 28.08.2019 of the High Court
      of Uttarakhand at Nainital in Writ Petition No. 3439 (M/S) of 2016.
F          Dr. Rajiv Nanda, Pankaj Miglani, Dhaval Mehrotra, M/S.K Ashar
      & Co., Advs. for the appearing parties.
              The Judgment of the Court was delivered by
              INDU MALHOTRA, J. Leave granted.
G            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.
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  STATE OF UTTARAKHAND & ORS. v. SMT. SURESHWATI                             169
                [INDU MALHOTRA, J.]

       2. The background facts of the present case are that the              A
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 Teachers, Clerk and Peon in
                                                                             B
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.
                                                                             C
      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      D
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        E
the complaint made by the Respondent.
        The Basic School Inspector vide his detailed report dated 24th
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         F
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,       G
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.
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170            SUPREME COURT REPORTS                          [2021] 1 S.C.R.


A            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.
B
            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
C     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
D     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
E     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
F     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
G     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 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
H
  STATE OF UTTARAKHAND & ORS. v. SMT. SURESHWATI                              171
                [INDU MALHOTRA, J.]

post. It was recommended that the Respondent be permitted to join the         A
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.        B
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   C
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          D
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                 E
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       F
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 24.8.2006 revealed that she was the daughter of the President and
Member of the Managing Committee which was running the School at              G
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
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172            SUPREME COURT REPORTS                          [2021] 1 S.C.R.


A     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
B     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
C     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
D     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
E     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
F     learned Single Judge of the High 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
G     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
H     abandonment of service.
    STATE OF UTTARAKHAND & ORS. v. SMT. SURESHWATI                                 173
                  [INDU MALHOTRA, J.]

       14. This Court has in a catena of decisions held that where an              A
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
                                                                                   B
was justified.
     A four Judge Bench of this Court in Workmen of the Motipur
Sugar Factory Private Ltd. v. Motipur Sugar Factory1held 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                 C
       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   D
       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                   E
       Tea Estate v. Workmen 4 , and Punjab National Bank
       Limited v. Workmen5 . 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 Co.7 . It was
       pointed out that “the important effect of omission to hold an enquiry       F
       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
1
                                                                                   G
  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.                                                                  H
174                SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A              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
B
               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
C              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.”
D          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
E              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.

F              ….
               (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
G              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
      8
H         (1972) 1 SCC 595.
     STATE OF UTTARAKHAND & ORS. v. SMT. SURESHWATI                                 175
                   [INDU MALHOTRA, J.]

         proceedings have not been properly held, that it derives jurisdiction      A
         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                  B
of Firestone Tyre & Rubber Co. of India (P) Ltd and Others.9wherein
the 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 the
         quantum of punishment are mainly managerial functions, but if a            C
         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.         D
         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       E
         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              F
         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
                                                                                    G
         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

9
    (1973) 1 SCC 813.                                                               H
176                SUPREME COURT REPORTS                            [2021] 1 S.C.R.


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
B
                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.
C
                (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.

D               (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
E               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
F               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
G               Estate v. Workmens10 within the judicial decision of a Labour
                Court or Tribunal.
                ……….


H     10
           (1971) 1 SCC 742.
  STATE OF UTTARAKHAND & ORS. v. SMT. SURESHWATI                               177
                [INDU MALHOTRA, J.]

      40. Therefore, it will be seen that both in respect of cases where       A
      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
                                                                               B
      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.
      41. We are not inclined to accept the contentions advanced on
      behalf of the employers that the stage for interference under            C
      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           D
      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            E
      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      F
      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.”                        G

       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

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178            SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     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
B
      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
C     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
D     before the Labour Court. It was open to the Respondent to have called
      for the records of the School i.e. the 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
E     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
F     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.

G            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
H
     STATE OF UTTARAKHAND & ORS. v. SMT. SURESHWATI                            179
                   [INDU MALHOTRA, J.]

alleged termination on 8.3.2006. The onus was entirely upon the                A
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 :                                      B
       “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.       C
       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.,     D
                                               13
       Faridabad v. Siri               Niwas , M.P.            Electricity
       Board v. Hariram14, Rajasthan State Ganganagar S. Mills
       Ltd. v. State of Rajasthan 15 ,: 2004 SCC (L&S) 1055]
       , Surendranagar            District       Panchayat v. Jethabhai
                         16
       Pitamberbhai ,and R.M.                       Yellatti v. Executive      E
       Engineer17 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.,                       F
       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
11
   (2014) 16 SCC 130.
12
   (2002) 3 SCC 25.
                                                                               G
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.                                                           H
180             SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A            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.
B            There will be not Order as to Costs.
             Pending applications, if any, are accordingly disposed of.


      Kalpana K. Tripathy                                           Appeal allowed.
C




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G




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