The Supreme Court in a judgment dated 24.09.2021 in National Gandhi Museum v. Sudhir Sharma, observed that 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

Factual Background
On December 24, 1996 Sudhir Sharma was appointed as a Museum Assistant by the National Gandhi Museum

In 2002, an Office Order was issued by the Mueseum of cancelling the option of compensatory leave against extra attendance and instead provided for extra emoluments for extra attendance. Objecting to the office order, Sharma on December 27, 2003 allegedly assaulted the Museum's Assistant Director and committed misconduct. Sharma was accordingly served a charge sheet which was challenged by him by way of a writ.

On July 12, 2004 Sharma's writ challenging the charge sheet was disposed of and he was granted liberty to challenge the Inquiry Report in the event the same was adverse to him. Pursuant to submission of the Inquiry Report by the Inquiry Officer, Sharma was held guilty of acts of subordination, creating a scene, causing disturbance to others in performance of their duty and causing violence in the office.

The Museum by an Office Order dated September 16, 2004 imposed the penalty of compulsory retirement on Sharma. An application was also filed by the Museum on December 8, 2004 in accordance with section 33(2)(b) of the Industrial Disputes Act, 1947 seeking approval of imposition of penalty. However the Museum applied for withdrawal of the said application on the ground that no necessary approval was required since it was a case of compulsory retirement.

Aggrieved by the order of compulsory retirement, Sharma approached the Delhi High Court seeking declaration of the same as null and void on account of Museum's failure to obtain approval u/s 33(2)(b) of the Industrial Disputes Act. The Delhi High Court while disposing of the petition on August 31, 2009 directed the Museum to reinstate Sharma in service with back wages. Aggrieved, the Museum preferred an appeal which was dismissed by the Division Bench of the High Court Even a review petition seeking a review of the Judgment and Order of the Division Bench was rejected.

Aggrieved by the High Court's judgement, the Museum approached the Supreme Court

Supreme Court's Judgment
With regards to Sharma's reinstatement, the Supreme Court after considering the aims and object of the Museum, serious nature of misconduct proved against Sharma observed that instead of granting reinstatement, there was a need to award appropriate compensation.

The Supreme Court further observed that, 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 was 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.

The Court thereafter taking into consideration the facts of the case partly allowed Museum's appeal by setting aside the order of reinstatement and of payment of back wages.

By - C. George Thomas