ABHAY S.OKA, J. - (1.) National Gandhi Museum is the appellant in these appeals. The appellant has taken an exception to the Judgment and Order dated 30th November 2009 delivered by a Division Bench of the High Court in Letters Patent Appeal No. 602/2009 and the Order dated 12th March 2010 by which the application made by the appellant for review of the Judgment and Order dated 30th November 2009 has been rejected. FACTUAL CONTROVERSY
(2.) With a view to appreciate the controversy, a brief reference to the facts of the case will be necessary: (a) In the year 1949, the Working Committee of the Indian National Congress executed a Deed of Declaration of a Trust in the name of Gandhi Smarak Nidhi with the main object of maintaining a Museum for preserving relics, books, articles and things associated with the Father of the Nation. Another object of the Trust was to propagate his messages and teachings of truth and non-violence. (b) Gandhi Smarak Sangrhalaya Samiti was incorporated and registered under the Societies Registration Act, 1860. The Museum (National Gandhi Museum) is being managed by Gandhi Smarak Sangrhalaya 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 Tribunal. (e) The Writ Petition filed by the respondent for challenging the charge sheet was heard on 12th July 2004 and was disposed of by granting a liberty to the respondent to challenge the Inquiry Report in the event the same be adverse to him. Inquiry Report was submitted by the Inquiry Officer holding 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. By the Office Order dated 16th September 2004, the appellant imposed penalty of compulsory retirement on the respondent. On 8th December 2004, the appellant filed an application before the Industrial Tribunal at Delhi in accordance with sub-section 2(b) of Section 33 of the Industrial Tribunal Act, 1947 (for short "I.D. Act "). The application was filed for seeking approval for imposing the penalty. However, the appellant applied for withdrawal of the said application to which an objection was raised by the respondent. The application for withdrawal was made on the ground that since it was a case of compulsory retirement, it was not necessary to obtain approval in terms of sub-section 2(b) of the Section 33 of the I.D. Act. By the order dated 8th December 2004, the application made by the appellant for grant of approval was dismissed as withdrawn. (f) The respondent filed Writ Petition No. 10211/2005 before the Delhi High Court for a declaration that the Office Order dated 16th September 2004 by which the penalty of compulsory retirement was imposed, was null and void on account of the failure to obtain approval under sub-section 2(b) of Section 33 of the I.D. Act. In the meanwhile, on th September 2005, the Industrial Tribunal disposed of the reference made earlier at the instance of the respondent on the basis of a statement made by the appellant that the workmen shall not be assigned any duty on second Sundays, Gazetted Holidays, and National Holidays. (g) By the Judgment and Order dated 31st August 2009, the learned Single Judge of the Delhi High Court allowed Writ Petition No. 10211/2005 and directed the appellant to reinstate the respondent in service with back wages. Being aggrieved by the said Judgment and Order, an appeal was preferred by the appellant. In the meanwhile, the appellant applied for a clarification of the Judgment and Order dated 31st August 2009 which application 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 appellant, the order of reinstatement is not at all justified. It is a case of loss of confidence and therefore, his continuation in service would result in encouraging gross indiscipline. (b) The learned senior counsel appearing for the appellant further submitted that the appellant is not a profit making entity or a business concern. Moreover, it is not even charitable or philanthropic arm of a company or a business entity. He submitted that appellant is a part of the said society dedicated to propagation of Gandhian teachings and philosophy. (c) The learned senior counsel appearing for the appellant submitted that the appellant did not exercise the option provided by the learned Single Judge of the Delhi High Court by initiating fresh proceedings against the respondent as the appellant wanted to test the issue whether it is an industry. (d) He submitted that the onus was on the respondent to plead and prove that he was not gainfully employed from the date of the order of compulsory retirement. The learned senior counsel further submitted that as the respondent has not discharged the burden on him, he is disentitled to claim back wages. He pointed that in terms of the interim Order dated 10th May 2010 of this Court, entire amount of back wages payable as on that date amounting to Rs. 4,43,380/- was deposited by the appellant and the said amount has been withdrawn by the respondent. He submitted that as the appellant depends on Government grants and donations from the members of the public, any amount ordered to be paid to the respondent would be at the cost of the public interest. He submitted that the payment of any amount to the respondent will amount to his unjust enrichment. (e) The learned senior counsel appearing for the appellant relied upon a decision of the Apex Court in the case of Indian Railway Construction Co. Ltd. v. Ajay Kumar; 2003 4 SCC 579. By relying on this decision, he submitted that considering the misconduct proved against the respondent, it will be unjust to allow his reinstatement. Without prejudice to earlier contentions raised by him, the learned senior counsel urged that a reasonable compensation can be granted to the respondent in lieu of reinstatement. He pointed out that the respondent has withdrawn the sum of Rs. 4,43,380/- deposited by the appellant in this Court in the year 2010. He submitted that the respondent has 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. ;