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The onus to prove the alleged illegal termination is on the workman: SC

When 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.(Para 14)

State Of Uttarakhand & Ors. V/S Smt. Sureshwati

Civil Appeal No. 142 Of 2021 (Arising Out of Special Leave Petition (Civil) No. 9864 of 2020)

Decided on 20th January, 2021

A Three-Judge Bench of the Supreme Court consisting of Justice L. Nageswara Rao, Justice Navin Sinha and Justice Indu Malhotra set aside the Judgment of the High Court wherein the decision of the labour Court was reversed.

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.

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. The Respondent had abandoned her service as a clerk in the School since 1.7.1997 when she got married, and shifted to Dehradun. 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.

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.

After both the parties presented oral and documentary evidences it was observed that:

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.”(Para 15)

The Court found that in the Award passed by the Labour Court 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.

The Court while relying on the ratio laid down in Bhavnagar Municipal Corpn. v. Jadeja Govubha Chhanubha (2014) 16 SCC 130, concluded that:

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.” (Para 18)

The appeal was allowed and the High Court Judgment was set aside, restoring the award of the Labour court.

View/Download Judgment: State Of Uttarakhand & Ors. V/S Smt. Sureshwati

Risikesh Dhanaki


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