Allahabad High Court
M/S Modi Industries Ltd. vs Prescribed Officer Labour Court Agra ... on 3 January, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 38 A.F.R. Case :- WRIT - C No. - 49756 of 2013 Petitioner :- M/S Modi Industries Ltd. Respondent :- Prescribed Officer Labour Court Agra And Anr. Counsel for Petitioner :- Tarun Agrawal,Shakti Swarup Nigam Counsel for Respondent :- C.S.C.,Ramgee Prasad Hon'ble J.J. Munir,J.
1. The petitioner M/s Modi Industries Ltd., Modi Nagar, District Ghaziabad, U.P. have preferred this petition under Article 226 of the Constitution challenging an award of the Presiding Officer, Labour Court, U.P., Agra dated 07.09.2012 (published on 11.03.2013) made in Adjudication Case No. 200 of 1991. By the said award (for short the 'impugned award') the Labour Court has held the termination of services of the second respondent-workman (for short the 'workman') by the petitioner-Employers (for short the 'Employers') with effect from 16.12.1989 to be illegal and improper, setting aside the Employers' order dated 16.12.1989 with a consequential direction that the workman, a Godown Keeper shall be reinstated in service with continuity, payment of balance of his salary during the period of his suspension from service and the entire back wages. The Employers were further ordered to pay the entire back wages within a period of one month from the date of enforcement of the award. The workman has also been awarded costs in the sum of Rs. 2500/-.
2. Apart from the respective case of parties, the facts leading to this writ petition are that the workman was employed by the Employers at their Agra Depot with effect from 5th November, 1981. He was appointed on the post of a peon. Lateron, on November the 15th, 1985, the workman was promoted to the post of a Godown Keeper. As a Godown Keeper, he was responsible for the maintenance and upkeep of the Company's Godown at Agra. These Godowns were utilized to store poly packs of Vanaspati Ghee. The Employers did a surprise check of their Godown on 17th February, 1988 that was carried out by one Pradeep Kumar Agarwal, a Branch Executive with the Employers. He is said to have noticed that some of the poly packs carrying Vanaspati Ghee were deliberately slashed by a sharp object and were damaged. The aforesaid officer of the Employers is further said to have noticed that vegetable Ghee had been removed from the damaged poly packs and these damaged poly packs were dumped along with other damaged poly packs, in order to show that the Godown stock was as per inventory. An inspecting official of the Employers appears to have submitted a report, recommending initiation of legal action against the workman. The Employers on the basis of the aforesaid report on 11th March, 1988 served the workman with a charge-sheet dated 20th April, 1988. The workman was charged with deliberately damaging poly packs of vegetable Ghee by slashing these with a sharp edged object and removal of the packaged contents for personal use or benefit.
3. It also appears that a little later on the 3rd of May, 1988, post issue of the charge-sheet, the workman was placed under suspension pending conclusion of disciplinary proceedings by a formal order to that effect issued by the Employers. The workman submitted his reply to the charge sheet on 16th May, 1988. The Employers appointed an Inquiry officer to go into the validity of the charges against the workman. One A.C. Mittal was appointed as the Inquiry Officer. The Inquiry Officer submitted his report on 31st August, 1989 to the Employers. Relying upon the findings carried in the inquiry report dated 31st August, 1989, last mentioned, the workman was dismissed from service vide order dated 16th December, 1989.
4. It was in the context of this action taken by the Employers that the workman raised an industrial dispute under Section 4-K of the U.P. Industrial Disputes Act, 1947 (for short the 'Act') on the basis of which the competent authority made a reference dated 27th September, 1991 to the Labour Court in the following terms (translated into English from Hindi vernacular):-
"Whether the act of the Employers in terminating the services of their workman Sri Vishan Chandra Agarwal s/o Sri Manohar Lal Agarwal, Godown Keeper with effect from 16.12.1989 is proper and lawful, if not to what relief/benefits the concerned workman is entitled to, and in what terms?"
5. The Labour Court registered the aforesaid reference as Adjudication Case No. 200 of 1991 and issued notice to parties. The workman filed his written statement dated 16.01.1993 whereas the Employers also filed their written statement on 16.01.1993. The workman filed his rejoinder statement dated 02.06.1993 whereas the Employers filed their rejoinder statement dated 04.06.1993. The Labour Court upon exchange of pleadings appears to have framed a preliminary issue on January the 12th, 1994 as regards the validity and procedural fairness of the domestic inquiry held. The aforesaid issue that was determined as a preliminary, reads thus:
"क्या सेवायोजकों द्वारा श्रमिक श्री विशन चन्द्र अग्रवाल के विरुद्ध की गई घरेलू जांच उचित, नियमित, वैधानिक है? यदि नहीं तो उसका प्रभाव।"
6. Both sides led evidence. On the preliminary issue regarding the fairness and regularity of the domestic inquiry framed by the Labour Court, after considering the evidence led on both sides, the Labour Court held by its order of November 14th, 2006 that the domestic inquiry conducted by the Employers was illegal and vitiated. The preliminary issue was thus answered in favour of the workman. In consequence of the aforesaid finding, the Labour Court directed parties to adduce evidence afresh before the Labour Court in support of the charge by the Employers, and by the workman, to defend himself.
7. Consequent upon the said direction both parties led evidence in support of their respective case before the Labour Court on the merits of the charges that were laid against the workman in the charge-sheet. On behalf of the Employers, one Pradeep Kumar Goyal, Branch Executive, last mentioned, testified on 19th February, 2007. He was cross examined the same day. Two other witnesses who appeared on behalf of the Employers were one Kamlendra and another Devendra. The workman took stand in the witness box on 21.09.2007 where he testified in support of his case. He was cross examined extensively at the conclusion of his examination-in-chief, the same day. After conclusion of evidence and hearing parties, the Labour Court by means of the impugned award, answered the reference in favour of the workman and against the Employers with an award in terms set out in the opening part of this judgment.
8. Aggrieved, the present writ petition has been filed by the Employers.
9. Heard Sri Shakti Swaroop Nigam, learned Senior Advocate assisted by Sri Alok Kumar Srivastava, learned Counsel for the Employers and Sri Ramgee Prasad, learned Counsel appearing on behalf of the workman.
10. The foremost fact to be considered is that the employers have charged the workman with intentional slashing of poly packs of vanaspati ghee and dishonest removal of the edible contents that he is alleged to have converted to his own use. He is further charged of mixing up the poly packs from which contents had been removed, with other damaged packets, in order to deceive the Employers by a stratagem that the empty packets would be accounted for in the godown stock of damaged packets, without detection of the removed contents.
11. Now, these charges were found established during the disciplinary proceedings but post reference to the Labour Court, on determination of the preliminary issue the Labour Court did not find the inquiry to be fairly and legally done, and by an order dated 14.11.2006 passed by the Labour Court, while determining the preliminary issue regarding fairness and regularity of the inquiry, ordered the employers to prove the charges before the Labour Court; and the workman to defend. The most vital fact in issue, therefore, is whether the employers were able to establish the charges before the Labour Court on merits when inquiry into those charges was laid open before the Labour Court. Decidedly , it was for the employers whether in the domestic inquiry or before the Labour Court to establish the charge against the workman by the civil standard. In other words, the employers were required to establish the charges by preponderance of probability. The aforesaid charges against the workman have arisen in the background of allegations that emanate from personal differences between the workman and Mr. P.K. Agarwal, Branch Executive of the Employers, who reported his misconduct leading to the disciplinary proceedings. Shorn of unnecessary detail, according to the workman's version, Mr. P.K. Agarwal removed one Rakesh Kumar, an office peon in August, 1988 because he would make him run errands at home. After Rakesh Kumar was removed, Mr. P.K. Agarwal required the workman to take over those household duties of his. It is claimed by the workman that Mr. P.K. Agarwal required him to do his household chores, including washing his linen which the workman says, he declined. Thereupon, Mr. P.K. Agarwal assigned him this job in the office and deputed him as office clerk to serve at the godown, where these poly packs are stored.
12. According to the workman on 16.02.2018, which was a holiday, Mr. P.K. Agarwal visited the godown in the workman's absence and removed the contents of some of the poly packs. The consignment of vanaspati Ghee had to be dispatched that day to a certain Jain Sales Corporation, Agra. Mr. P.K. Agarwal ordered the workman to go to the godown on the following day, that is on 17.02.1988. On reaching the godown, the workman claims to have found the slashed poly packs regarding which he gave telephonic information to Mr. P.K. Agarwal. The workman further claims to have submitted a complaint in the matter to the sales office which is on record as Exhibit W-4. After this report by the workman, Mr. P.K. Agarwal, on the letter head of the Employers, scribed a report which is Exhibit W-5. It is claimed by the workman also that since Mr. P.K. Agarwal knew that it was his misdeed, he stayed quiet for a month about the issue. At the end of it all, the workman says that in connivance with his brother-in-law, one S.C. Goel who is the Chief Chemist, Modi Nagar Factory of the Employers, he colluded with certain officers in the head office to draw a false report against the workman, wherein the workman was framed and suspended.
13. The Labour Court while going into the proof of the charges on evidence led by the employers and weighing probabilities, considering the workman's defence, returned a finding which reads to the following effect (in Hindi vernacular):
"mi;qZDr ds laca/k esa i{kksa dks lquk x;kA muds }kjk nkf[ky fyf[kr dFku] izR;qRrj] lk{; ,oa vfHkys[kksa dk voyksdu fd;k x;kA oknh Jfed ds vuqlkj og xksnke dhij ds in ij dk;Zjr jgkA vkxjk lsYl vkfQl esa dk;Zjr Jh jkds'k pijklh dks Jh iznhj dqekj vxzoky czkap ,DthD;wfVo }kjk o"kZ 1988 esa ?kj dk dke djus ls euk djus ds dkj.k gVk fn;kA Jh jkds'k dks gVkus ds ckn Jh iznhj dqekj vxzoky] czkap ,DthD;wfVo }kjk oknh ls ?kj dk dke vkSj diM+s /kksus dk dke djus ds fy, dgk x;kA oknh }kjk euk dj nsus ij Jh iznhi dqekj vxzoky czkap ,DthD;wfVo ukjkt gks x;s vkSj muds }kjk oknh Jfed ls xksjke dh txg vkfQl esa dke ysus yxs vkSj vkfQl DydksZa ls xksnke dk dke yus yxs rkfd dksbZ xyrh gksus ij oknh dks Qalk;k tk ldsA oknh ds vuqlkj mlds }kjk bldh lwpuk gsM vkfQl dks Hkh nh x;h FkhA okn esa lquokbZ ds nkSjku izfroknh lsok;kstd i{k }kjk oknh Jfed dh mDr rF;kRed lk{; ,oa dFku dk dksbZ [kaMu ugha fd;k x;kA vr% bls lgh ekuus dk iw.kZ vkSfpR; gSA oknh Jfed ds vuqlkj xksnke dh pkfHk;ka Lo;a Jh iznhi dqekj vxzoky czkap ,DthD;wfVo ds ikl jgrh Fkh vkSj og ftls pkgrs Fks mls pkfHk;ka nsrs FksA Lvksj eq[; :i ls Jh iznhi dqekj vxzoky] czkap ,DthD;wfVo dh ns[kjs[k esa jgrk FkkA izfroknh lk{; Jh iznhi dqekj vxzoky czkap ,DthD;wfVo }kjk viuh 'kiFkiwoZd lk{; esa Hkh Lohdkj fd;k x;k gS fd xksnke dh pkfHk;ka muds ikl jgrh FkhA fnukad 16-02-1988 dks og xksnke ,oa cjkensa dh lHkh pkfHk;ka vius lkFk ?kj ys vk;s FksA bl izdkj rF;ksa ds voyksdu ,oa foospu ls Li"V gS fd xksnke dh pkfHk;ka Jh iznhi dqekj vxzoky czkap ,DthD;wfVo ds ikl jgus dh fLFkfr esa xksnke esa j[ks eky dh pksjh vFkok Msest gksus ds laca/k esa izfroknh }kjk oknh Jfed ij vkjksi fdl vk/kkj ij yxk;k x;k gS\ bldk dksbZ rF;kRed lk{; ,oa fooj.k izfroknh lsok;kstd i{k }kjk okn esa lquokbZ ds nkSjku nkf[ky@izLrqr ugha fd;k x;k gSA oknh Jfed ds vuqlkj mlds }kjk fnukad 17-02-1988 dks dksbZ FkSyh ugha QkM+h vkSj u ?kh fudkykA mlds Åij >wBk vkjksi yxk;k x;k gSA fnukad 16-02-1988 dks Jh iznhi dqekj vxzoky czkap ,DthD;wfVo vodk'k ds fnu xksnke x;s vkSj iksyhiSd [kkyh fd;s vkSj muds }kjk mlh fnu eS0 tSu lsyl dkjiksjs'ku] vkxjk dks eky fMLiSp djk;k x;kA fnukad 17-02-1988 dks Jh iznhi dqekj vxzoky czkap ,DthD;wfVo }kjk oknh Jfed dks xksnke tkus ds fy, dgk rks ogka tkdj oknh us dVs gq, iSd ik;s tkus dh lwpuk Jh iznhi dqekj vxzoky czkap ,DthD;wfVo dks nwjHkk"k ij nh] fdUrq og ogka ugha igqapsA oknh ds vuqlkj mlh fnu lsYl vkfQl vkdj fjiksVZ dh tks izn'kZ Mcyw&4 gSA okn esa lquokbZ ds nkSjku Jh iznhi dqekj vxzoky czkap ,DthD;wfVo }kjk viuh lk{; esa crk;k x;k fd og fnukad 16-02-1988 dks ikfVZ;ksa dks eky fudyokus ds fy, xksnke x;s Fks vkSj oknh Jfed Jh fo'ku pUnz vxzoky dks vius lkFk ugha ys x;s Fks D;ksafd ml fnu NqV~Vh Fkh blfy, oknh Jfed M~;wVh ij ugha FkkA Jh iznhi dqekj vxzoky] czkap ,DthD;wfVo ds vuqlkj og vdsys xksnke x;s FksA muds lkFk vU; dksbZ deZpkjh ugha x;k FkkA Jh iznhi dqekj vxzoky] czkap ,DthD;wfVo ds vuqlkj muds }kjk dksbZ ,slk rF; ;k izek.k izLrqr ugha fd;k fd fnukad 16-02-1988 dks tc xksnke ls okil vk;s rks xksnke esa lgh o [kjkc eky dh ek=k;sa D;k Fkha\ Jh iznhi dqekj vxzoky] czkap ,DthD;wfVo}kjk lk{; esa ;g Hkh crk;k x;k fd muds }kjk Jfed dks iksyhiSd dkVrs ugha ns[kkA ekSds ij iksyhiSd dkVus dk lkeku dSaph] CysM vkfn ugha feykA dksbZ ,slk izR;{knh'khZ xokg ugha gS ftlus Jfed dks FkSyh dkVrs ;k eky fudkyrs ns[kk gksa izfroknh }kjk ikyhiSd dkVdj ?kh fudkyus@pksjh djus dh ?kVuk dh dksbZ izkFkfedh Hkh ntZ ugha djkbZ x;hA bldk Hkh dksbZ dkj.k ugha crk;k x;kA bl izdkj oknh Jfed ij fnukad 17-02-1988 dks iksyhiSd dks dkVdj ?kh fudkyus] mldh pksjh djus ds yxk;s x;s vkjksi ds lanHkZ esa izfroknh i{k dh mDr lk{; ,oa dFku ds voyksdu ,oa foospu ds i'pkr eSa bl er@fu"d"kZ dk gaw fd oknh Jfed ij fnukad 17-2-1988 dks iksyhiSd dh FkSfy;ksa dks dkVdj mlesa ls ?kh fudkyus dk yxk;k x;k vkjksi vlR; ,oa fujk/kkj gSA izfroknh }kjk nh x;h mDr lk{; ,oa dFku ds ifjizs{; esa oknh Jfed ij yxk;k x;k vkjksi fl)@izekf.kr ugha gksrk gSA"
14. Sri Shakti Swaroop Nigam, learned Senior Counsel for the petitioner has assailed the findings recorded by the Tribunal on ground, amongst others, that the Labour Court cannot sit in appeal over the conclusions of the domestic inquiry. It is submitted that the Labour Court can only do a Wednesbury review or a secondary review of the findings recorded by the Inquiry Officer and may interfere where the procedure by which the decision is reached is not found to be fair, just and reasonable. However, the Labour Court cannot go into the correctness or validity of the decision itself, if the Inquiry Officer has recorded findings taking a reasonable view of the evidence on record. In support of his contention, he placed reliance upon the decision in Depot Manager, A.P.S.R.T. Corporation vs. Reghuda Siva Sankar Prasad, 2007 (112) FLR 703. He has also, in particular, placed reliance upon the decision of the Supreme Court in West Bokaro Colliery (TISCO LTD.) vs. Ram Pravesh Singh, (2008) 3 SCC 729: 2009 (120) FLR 1147. In support of the contention aforesaid, referring to their Lordships decision in West Bokaro Colliery (TISCO LTD.) (supra), attention of this Court has been drawn to paragraphs 14, 15, 16, 17 and 18 of the report by Sri Nigam, where it is held:
"14. The Tribunal in its order on reappreciation of evidence came to the conclusion that in the absence of any independent evidence other than of fellow workmen, the charge of indecent, riotous and disorderly behaviour with superior and co-worker was not proved. Insofar as the absence from the duty is concerned, the Tribunal came to the conclusion that according to the workman, he had left the place of work at 12.25 p.m. and as the incident allegedly had taken place at 12.30 p.m., the respondent could not have reached the place of incident at 12.30 p.m. after collecting his other associates. In para 14 of its order, the Tribunal concluded that Management had failed to substantiate the charges brought against the workman beyond reasonable doubt.
15. This Court in Divl. Controller, KSRTC (NWKRTC) v. A.T. Mane [(2005) 3 SCC 254 : 2005 SCC (L&S) 407] held that: (SCC p. 258, para 9) "9. From the above it is clear that once a domestic tribunal based on evidence comes to a particular conclusion, normally it is not open to the Appellate Tribunals and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticketless passengers to reject the said finding which, in our opinion, as held by this Court in Rattan Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC 491 : 1977 SCC (L&S) 298] is not a condition precedent. We may herein note that the judgment of this Court in Rattan Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC 491 : 1977 SCC (L&S) 298] has since been followed by this Court in Devendra Swamy v. Karnataka SRTC [(2002) 9 SCC 644 : 2002 SCC (L&S) 1093]."
16. In U.P. SRTC v. Vinod Kumar [(2008) 1 SCC 115 : (2008) 1 SCC (L&S) 1 : (2007) 13 Scale 690] this Court again observed that in the absence of a challenge to the legality or fairness of the domestic enquiry, the Court should be reluctant to either interfere with the finding recorded by the enquiry officer or the punishment awarded by the punishing authority.
17. After going through the order of the Industrial Tribunal, we are of the opinion that the Tribunal has interfered with the findings recorded by the domestic tribunal as if it was the Appellate Tribunal. There was evidence present on record regarding indecent, riotous and disorderly behaviour of the respondent towards his superiors. The Management witnesses who were present at the scene of occurrence have unequivocally deposed about the misbehaviour of the respondent towards his superiors. Their evidence has been discarded by the Tribunal by observing that in the absence of independent evidence, the statements of the workmen who were present at the scene of occurrence could not be believed. The Industrial Tribunal fell in error in discarding the evidence produced by the Management only because the independent witnesses were not produced.
18. It is nobody's case that the independent witnesses were available at the scene of occurrence and the Management had failed to produce them. It is possible that at the time of occurrence, only the workers of the Management and the persons who were trying to put up the construction unauthorisedly were the persons present and no independent evidence was available. Statements of the fellow workmen had established the misconduct of the respondent. Enquiry officer accepted the testimony of the witnesses produced by the Management who had clearly implicated the respondent. It was a legitimate conclusion which could be arrived at and it would not be open to the Industrial Tribunal to substitute the said opinion by its own opinion."
15. This Court finds that though the principle which Sri Nigam has urged is well settled but that applies to a situation where the fairness of the inquiry is not in issue. In West Bokaro Colliery (TISCO LTD.) (supra) relied upon by the learned Senior Counsel for the petitioner, shows on a perusal of paragraph 8 of the report that there the respondent had made a statement before the Labour Court that he did not want to challenge the legality, fairness or proprietary of the domestic inquiry. It was in the context of that kind of a lis where the Labour Court reviewed the findings recorded by the Inquiry Officer that the law in paragraphs 14 to 18 of the aforesaid decision of their Lordships has been laid down. The present is one where the fairness of the inquiry was seriously impeached by the workman somuch so that the Labour Court framed a preliminary issue to this effect, as already detailed hereinabove. The said issue being answered in favour of the workman, the Labour Court proceeded to require the Employers to lead evidence before it in support of the charges; and, of course, in his defence by the workman too.
16. This course of action adopted by the Labour Court was eminently right, in the opinion of this Court. The law governing the course to be adopted by a Labour Court in such circumstances is laid down by their Lordships of the Supreme Court in Neeta Kaplish vs. Presiding Officer, Labour Court, (1999) 1 SCC 517: 1999 SCC (L&S) 302, where it is held thus:
"24. In view of the above, the legal position as emerges out is that in all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the management or the employer to justify the action taken against the workman and to show by fresh evidence that the termination or dismissal order was proper. If the management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence.
(Emphasis by Court)
25. In the instant case, the appellant had questioned the domestic enquiry on a number of grounds including that her own answers, in reply to the questions of the Presiding Officer, were not correctly and completely recorded and that the Enquiry Officer was not impartial and was biased in favour of the respondent. It was further contended that her own witnesses were not called and she was not given the opportunity to lead evidence. The Labour Court has discussed a few of these grounds but has not given any finding on the bias of the Enquiry Officer or the ground relating to incorrectly recording the statement of the appellant. The Labour Court, however, found that the enquiry was not fairly and properly held. It was after recording this finding that the Labour Court called upon the Management to lead evidence on merits which it did not do.
26. Learned counsel for the appellant (sic respondent) contended that in spite of the direction by the Labour Court to the respondent-Management to lead evidence, it was open to the Management to rely upon the domestic enquiry proceedings already held by the Enquiry Officer, including the evidence recorded by him, and it was under no obligation to lead further evidence, particularly as the Management was of the view that the charges, on the basis of the evidence already led before the Enquiry Officer, stood proved. It was also contended that under Section 11-A, the Labour Court had to rely on the "materials on record" and since the enquiry proceedings constituted "material on record", the same could not be ignored. The argument is fallacious.
27. The record pertaining to the domestic enquiry would not constitute "fresh evidence" as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute "material on record", as contended by the counsel for the respondent, within the meaning of Section 11-A as the enquiry proceedings on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and were in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that a full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be "material on record" within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the Management has to suffer the consequences."
17. It is all the more important to point out that the decision of the Labour Court to hold an inquiry itself into the charges was not challenged by the Employers, once the domestic inquiry was condemned by the Labour Court not to be one that was procedurally fair, just and reasonable. Rather, they elected to lead evidence in support of the charges before the Labour Court, where the workman defended himself. This Court is of clear opinion that in a case like the present one where the Labour Court has directed evidence on the merits of the charge to be led before it, the Labour Court is not a Tribunal confined in its role to do a secondary review. In proceedings where all evidence is led before the Labour Court by the Employers and the workman after holding the domestic inquiry to be procedurally unfair, the Labour Court assumes the role of a primary decision maker. All questions of fact, assessment of evidence and proportionality of punishment to be awarded, if any, in this kind of exercise are open to the Labour Court. In the aforesaid background the decision in West Bokaro Colliery (TISCO LTD.) (supra) and Depot Manager, A.P.S.R.T. Corporation (supra) would not be of any assistance to the Employers. The Labour Court has recorded a categorical finding of fact, on a meticulous evaluation of evidence that was led before it, that charges against the workman carried in the Employer's charge sheet, are all false and baseless. It has further been held that termination of the workman's services by the Employers, based on these unproved charges, vide order dated 16.12.1989, is illegal and unjust.
18. The findings that have led to these firm conclusions by the Labour Court have been extracted hereinabove. Those findings in no way have been demonstrated by the learned Senior Counsel for the petitioner to be perverse or based on irrelevant evidence or non-consideration of relevant materials. The Labour Court has entered into a detailed analysis of the sequence of events about the manner in which the misconduct is said to have been committed, the articles recovered from the place of occurrence, the fact that no one is an eye witness to the workman's misconduct, and many others; all relevant considerations from which the conclusions drawn by the Labour Court could reasonably be recorded.
19. It is by far the legal position, about which there is hardly any conflict that findings of fact recorded by a Labour Court, based on admissible evidence taking a plausible view are not to be disturbed by this Court in exercise of jurisdiction under Article 226, or in the supervisory jurisdiction under Article 227 of the Constitution. Interference can only be made when the findings of the Labour Court are perverse. Else, the Labour Court is a final Court of fact and its conclusions are not be to disturbed. In this connection, reference may be make to the decision of their Lordships of Hon'ble Supreme Court in Management of Madurantakam Co-operative Sugar Mills Ltd vs. S. Viswanathan, 2005 (104) FLR 1229, where in paragraph 12 of the report, it is held:
"12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these type of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution of India can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere he has come to the conclusion that the finding of the Labour Court is either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court."
20. In this view of the matter, this Court is of the opinion that the finding of the Labour Court holding the charges to be not proved against the workman is a sound finding that accords well with the law and evidence on record. The said finding does not require inference by this Court in exercise of jurisdiction under Article 226 of the Constitution.
21. The other contention urged by Sri Nigam is that whatever be the outcome and the findings of the Labour Court, looking to the essence of the charge that is one of theft, the findings of the domestic inquiry even if not found to be valid by the Labour Court, in principle, or in law, or even on facts, the present is a case of loss of confidence of the Employers in their workman. He submits that so far as the Employers are concerned, for their part are convinced that the workman has committed an act of theft by which he has shattered their confidence, as it is described. In the nature of things, the Employers cannot be compelled to reinstate a workman in service about whom, they by their conscience feel is a thief. In this connection Sri Nigam, again has placed reliance on the decision of the Supreme Court in Depot Manager, A.P.S.R.T. Corporation vs. Reghuda Siva Sankar Prasad (supra), where in paragraph 19 of their Lordships' decision, it is held:
"19. The learned Judges of the High Court have also failed to appreciate that once an employee has lost the confidence of the employer, it would not be safe and in the interest of the Corporation to continue the employee in the service. ...."
22. He has further placed reliance on the decision of Supreme Court in Divisional Controller, Karnataka State Road Transport Corporation vs. M.G. Vittal Rao, (2012) 1 SCC 442, where it has been held:
"25. Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity, and in a case of loss of confidence, reinstatement cannot be directed. [Vide Air India Corpn. v. V.A. Rebellow [(1972) 1 SCC 814 : AIR 1972 SC 1343] , Francis Klein & Co. (P) Ltd. v. Workmen [(1972) 4 SCC 569 : AIR 1971 SC 2414] and BHEL v. M. Chandrasekhar Reddy [(2005) 2 SCC 481 : 2005 SCC (L&S) 282 : AIR 2005 SC 2769].]
26. In Kanhaiyalal Agrawal v. Gwalior Sugar Co. Ltd. [(2001) 9 SCC 609 : 2002 SCC (L&S) 257 : AIR 2001 SC 3645] this Court laid down the test for loss of confidence to find out as to whether there was bona fide loss of confidence in the employee, observing that, (SCC p. 614, para 9) (i) the workman is holding the position of trust and confidence; (ii) by abusing such position, he commits an act which results in forfeiting the same; and (iii) to continue him in service/establishment would be embarrassing and inconvenient to the employer, or would be detrimental to the discipline or security of the establishment. Loss of confidence cannot be subjective, based upon the mind of the management. Objective facts which would lead to a definite inference of apprehension in the mind of the management, regarding trustworthiness or reliability of the employee, must be alleged and proved. (See also Sudhir Vishnu Panvalkar v. Bank of India [(1997) 6 SCC 271 : 1997 SCC (L&S) 1662 : AIR 1997 SC 2249].)
27. In SBI v. Bela Bagchi [(2005) 7 SCC 435 : 2005 SCC (L&S) 940 : AIR 2005 SC 3272] this Court repelled the contention that even if by the misconduct of the employee the employer does not suffer any financial loss, he can be removed from service in a case of loss of confidence. While deciding the said case, reliance has been placed upon its earlier judgment in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik [(1996) 9 SCC 69 : 1996 SCC (L&S) 1194].
28. An employer is not bound to keep an employee in service with whom relations have reached the point of complete loss of confidence/faith between the two. [Vide Binny Ltd. v. Workmen [(1972) 3 SCC 806 : AIR 1972 SC 1975], Binny Ltd. v. Workmen [(1974) 3 SCC 152 : 1973 SCC (L&S) 444 : AIR 1973 SC 1403] , Anil Kumar Chakraborty v. Saraswatipur Tea Co. Ltd. [(1982) 2 SCC 328 : 1982 SCC (L&S) 249 : AIR 1982 SC 1062] , Chandu Lal v. Pan American World Airways Inc. [(1985) 2 SCC 727 : 1985 SCC (L&S) 535 : AIR 1985 SC 1128] , Kamal Kishore Lakshman v. Pan American World Airways Inc. [(1987) 1 SCC 146 : 1987 SCC (L&S) 25 : AIR 1987 SC 229] and Pearlite Liners (P) Ltd. v. Manorama Sirsi [(2004) 3 SCC 172 : 2004 SCC (L&S) 453 : AIR 2004 SC 1373].]
29. In Indian Airlines Ltd. v. Prabha D. Kanan [(2006) 11 SCC 67 : (2007) 1 SCC (L&S) 359 : AIR 2007 SC 548] , while dealing with the similar issue this Court held that: (SCC p. 90, para 56) "56. ...loss of confidence cannot be subjective but there must be objective facts which would lead to a definite inference of apprehension in the mind of the employer regarding trustworthiness of the employee and which must be alleged and proved."
30. In case of theft, the quantum of theft is not important and what is important is the loss of confidence of employer in employee. (Vide A.P. SRTC v. Raghuda Siva Sankar Prasad [(2007) 1 SCC 222 : (2007) 1 SCC (L&S) 151 : AIR 2007 SC 152].)"
23. Once the Labour Court has found the case to be one where charges are not at all proved, the case of loss of confidence cannot be imported for the mere fancy of the Employers. In this connection the decision in Indian Airlines Ltd. Vs. Prabha D. Kanan, (2006) 11 SCC 67, clearly accepts the principle that loss of confidence is not something that is subjective with the employer but should be an inference based on tangible facts that may give rise to a reasonable apprehension in the employer's mind about the fidelity of the employee. It has been held in the decision in Indian Airlines Ltd. (supra) that facts that lead the employer to harbor apprehension regarding "trustworthiness of the employee .................. must be alleged and proved" [see decision in Indian Airlines Ltd. (supra)]. Thus, the contention of the learned Senior Counsel for the petitioner that the workman has been found involved in a case of slashing poly packs of vanaspati ghee and removing the edible contents that he converted to his own use, is a fact that is not proved on the basis of findings recorded by the Labour Court, in the adjudication made by it, on evidence led by both sides. The charge being thoroughly dispelled, this possibly cannot be a case where principle of loss of confidence can be invoked by the Employers to keep the workman out of service.
24. The last limb of Sri Nigam's submission is based on a fact asserted in the writ petition that the Employer's unit, where the workman was employed, has suffered a closure and has been declared sick under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the ''SICA'). It is submitted that before the repeal of the said Act, the Employers' industrial unit was closed down and has been declared sick with effect from 14.03.1991. As such, the petitioner cannot be reinstated in service. Refuting the aforesaid claim of the Employers, the workman in his counter affidavit, has stated in paragraph 5, that not reinstating the workman after the award has been made in his favour by the Labour Court is misplaced. It is averred that Section 22 of the SICA is not applicable to the present case, inasmuch as the said Act has been repealed and the BIFR and AIFR stand dissolved; all proceedings before them stand abated with effect from 01.12.2016, when the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 came into force.
25. The petitioners have disputed the legal position emerging from the repeal of the SICA. The Court does not wish to go much into the effect of repeal of the said statute, as it is found to be unnecessary. Learned Counsel for the workman submits on the strength of a decision of this Court in Modi Industries Ltd. vs. Additional Labour Commissioner, 1994 (1) LLJ 482 that the liability of an employer to pay its workman for the work done is not affected by the provisions of the SICA. In Modi Industries Ltd. vs. Additional Labour Commissioner (supra), it has been held:
"[15] In my opinion, the aforesaid reasoning adopted by Hon'ble Supreme Court applies with full force to the facts of the present case also. The Parliament while putting Section 22 of the Act, 1985 could never have intended that the industrial unit under the garb of sickness or for any like difficulty may be allowed to shirk its liability to pay the wages to its workers for the work they have done. Thus proceedings under Section 3 of the U.P. Act of 1978 will not be affected by Section 22 of the Act of 1985."
26. It would make difference, however, in case they are no longer a working and viable industrial unit, where the workman may be reinstated in service. Apart form the fact that the petitioners have alleged in paragraph no. 4 of the writ petition that they have been declared sick under the SICA, they have also said that their unit has closed down.
27. It is averred in paragraph no.8 of the writ petition that the unit has been declared sick on 14.03.1991. In paragraphs 5 and 9 of the writ petition, there is no specific pleading traversing the contention of the Employers that they have been declared a sick unit on 14.03.1994, or on any other date under the SICA. Thus, for a fact there is no denial by the workman that the Employers' unit has been declared sick. The pleading in answer, however, is to the effect that SICA stands repealed with effect from 01.12.2016, as detailed hereinbefore. The workman has not disputed the Employers' case in paragraph 4 of the counter affidavit that they are a unit that has closed down. The said fact is not denied for a fact and must, therefore, be held to be admitted by non-traverse. Ordering the workman to be reinstated in a unit that is closed down and non-functional, would constitute a direction impossible of execution. The direction about payment of back-wages cannot, however, be faulted.
28. The learned Senior Counsel appearing for the petitioner submits that the Employers' unit being declared sick with effect from 14.03.1991, the Employers cannot be compelled to pay back-wages beyond the said date. According to him, the back-wages have to be confined to the period 16.12.1989 to 14.03.1991, that is to say, between the date of workman's termination from service and the date when the Employers' unit was declared sick. This Court is not in agreement with the said submission advanced by the learned Senior Counsel. The said plea about the petitioners' unit going sick and its effect on the liability was not raised, and in any case never urged before the Labour Court, as would appear from a perusal of the impugned award. This plea has been taken for the first time before this Court, which cannot be gone into in the first instance here. It is for this reason, amongst others, that this Court has earlier remarked that the Court is not inclined to go much into the position about rights of parties, emerging from repeal of the SICA.
29. The question that still remains to be examined is as to what back-wages is the workman entitled to? The Labour Court has ordered reinstatement with full back-wages and continuity of service. This is in keeping with the finding recorded by the Labour Court that the charge on which that the workman's services have been terminated, has been held by it to be baseless and false. The direction of the Labour Court with a finding of that kind cannot be said to be illegal in any manner. The only modifications that are required to be made is on account of the fact that the Employers are no longer a functional unit and have since long closed down. In the circumstances, apart from modifying the award to exclude the direction regarding reinstatement, the ends of justice would be served by requiring the Employers to pay a lump sum of Rs.5 lakhs, in lieu of the direction for reinstatement with back-wages and continuity of service, within two months of the date of this judgment.
30. In the result, this writ petition is allowed in part. The impugned award dated 07.09.2012 is modified to provide that in substitution of the direction to reinstate the workman with continuity of service, payment of salary for the period of suspension and the entire back-wages for the period that he remained out of service, there shall be a direction to the Employers to pay the workman a sum of Rs.5 lakhs in lump sum, within two months of the date of this judgment. In the event of default, the aforesaid sum shall carry interest reckoned at Bank Rate until realization in accordance with law. The Employers shall pay the workman costs in the sum of Rs.20,000/-.
Order Date :- 03.01.2020 BKM/Deepak/Anoop