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The onus of proof to show that the employee was in actual and continuous service of the employer during the disputed time falls on the employee. The Supreme Court bench consisting of J. L. Nageswara Rao, J. Navin Sinha and j. Indu Malhotra allowed the Special Leave Petition filed by the State of Uttarakhand against an ex-employee in the case of State of Uttarakhand & Ors. v. Smt. Sureshwati [Civil Appeal No. 142 of 2021].

The respondent was initially engaged as an Assistant Teacher in Jai Bharat Junior High School after which she worked as a clerk. Subsequently, the District Basic Education Officer granted approval to the appointment of the Teachers, Clerk and Peon in the School, including the respondent. During this period, the School was an unaided private institution. Many years later, the School started receiving grant-in-aid from the State, and came to be governed by the Uttaranchal School Education Act, 2006. The appellants stated that the respondent had abandoned her service as a clerk when she got married and shifted elsewhere. The respondent, after about 9 years filed a complaint before the School contending that she had worked continuously and that her services were illegally retrenched without granting her any hearing or payment of retrenchment compensation. The inquiry conducted cleared that the respondent had manipulated the School records and hence, was not eligible to any compensation.

The respondent filed a complaint before the Labour Commissioner who passed an ex-parte award in favour of the employee. The said award was challenged before the High Court who allowed the writ petition and remanded the case to the Labour Court to decide the matter de novo in accordance with law. The respondent argued that she had been in employment of the School when she was illegally terminated, without holding any enquiry or granting her personal hearing. The Head Master of the School stated that the respondent had only filed a false complaint before the Labour Commissioner when the School became aided and that the allegations were baseless. The Labour Court decided against the respondent to which a writ petition was again filed by the respondent before the High Court. The court allowed the petition only on the grounds 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.

The Supreme Court firstly stated, relying on Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory [AIR 1965 SC 1803], that “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”, which according to the SC, in this case was done by the employer. The Court added “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”. Allowing the appeal and holding that the respondent had failed to discharge the onus of proof that she had be working continuously as claimed by her, the court, relying on Bhavnagar Municipal Corpn v. Jadega Govubha Chhanubha [(2014) 16 SCC 130], stated that “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. 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”.

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