Analysis of National Gandhi Museum v. Sudhir Sharma & Ors.

Udhav Mittal and Tarushi Tiwari

Recently, the Supreme Court observed that whether an employee has been able to discharge the burden that he was not gainfully employed after order of compulsory requirement or not is an issue which is to be decided in the facts of each case taking into consideration the entire material on record.

Facts

Gandhi Smarak Nidhi was established for maintaining a museum for preserving relics, books, articles and things associated with the Father of the Nation. The respondent was appointed as a Museum Assistant. In 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 to which the respondent objected.

The respondent’s objection was followed by an assault on the Assistant Director on 27th December 2003. A writ petition was filed by the appellant for challenging the charge sheet. The writ petition was heard and was disposed of by granting liberty to the respondent to challenge the Inquiry Report in the event the same be averse to him.

Inquiry Report stated that the respondent was guilty of acts of subordination, creating a scene, causing disturbance to others in performance of their duty and causing violence in the office. On 16th September 2004, the appellant-imposed penalty of compulsory retirement on the respondent.

Thereafter the appellant filed an application before the Industrial Tribunal at Delhi seeking approval for imposing the penalty. However, the appellant applied for withdrawal of the said application, since it was not necessary to obtain approval. The respondent filed a writ petition in Delhi High Court to declare the penalty of compulsory retirement null and void. The court allowed Writ Petition and directed the appellant to reinstate the respondent in service with back wages.

An appeal was made by the appellant. Meanwhile a review appeal was also filed to examine the judgement. However, both were rejected by the division bench of the Delhi High Court.

Submissions

Appellant’s submissions:

• The appellant is not an industry.
• The onus is on respondent to prove that he was not gainfully employed.
• Respondent’s reinstatement will be unjust considering his misconduct.

Respondent’s submissions:

• The appellant needs to seek approval under 2(b) of Section 33 of the I.D. Act before ordering compulsory retirement.

Judgement

The apex court gave a threefold answer as to why the contention that it is not an Industry within the meaning of I.D. Act was not to be considered.

1. The court opined that the museum cannot be covered within the ambit of industry because the respondents had never contended this before and only raised this issue while making a review application. This was substantiated by lack of evidence before the bench.
2. On the question of reinstatement, the court was of the opinion that by balancing the conflict of interests of the aims and object of the appellant and the serious nature of misconduct proved against the respondent, appropriate compensation needs to be awarded.
3. Further, the court made the observation that the respondent was only liable to be given a compensation instead of reinstatement because he had made no plea of dismissal of gainful employment, even in the counter filled for the appeals.

Conclusion

It can be incurred from this case that an employee has been able to discharge the burden that he was not gainfully employed after order of compulsory requirement or not is an issue which is to be decided in the facts of each case taking into consideration the entire material on record.