Calcutta High Court
Westinghouse Saxby Farmer Ltd. vs Raj Behari Ram And Ors. And K.B. Dalrami ... on 28 April, 1995
Equivalent citations: (1995)2CALLT103(HC), [1995(71)FLR1064], (1996)IIILLJ122CAL, 1995(7)SLR281
JUDGMENT Samaresh Banerjea, J.
1. In both the writ applications being C.O. No. 4046 (W) of 1988 and CO. No. 4047 (W) of 1988 the petitioner company namely, Westinghouse Saxby Farmer Ltd. has challenged the Award dated September 27, 1987 passed by the 9th Industrial Tribunal, jointly in case of X-30/ 82. and X-31/82, which were heard analogously. By the said award it was directed that the dismissal of Shri K. B. Dalrami, workman respondent No. 1 and Shri A. K. Patra, workman respondent No. 2 in C.O. No. 4047 (W) of 1988 and Raj Behari Ram workman respondent No. 1 in C.O. No. 4046 (W) of 1988 are not justified and they are entitled to get reinstatement in their respective services from the date of their dismissal with all back wages, all allowances and all the benefits which they were entitled to get up to this day if they were in service. As Shri A. K. Patra died sometimes in August, 1984 during the pendency of the proceeding before the Tribunal and was substituted by his widow, it was held that his legal heirs were entitled to get the money by way of wages, allowances and other benefits covering into money, according to their respective share from the date from the date of dismissal of A. K. Patra till the date of his death.
2. The petitioner company has challenged such Award on a number of grounds.
3. The first contention of the petitioner company is that the reference itself was bad. It is contended that all the workmen were discharged from their service and were not dismissed; that the dispute in respect of K.B. Dalrami and A. K. Patra reference was made to the 9th Industrial Tribunal, Durgapur under Section 10 of the Industrial Disputes Act, whereas the dispute in the case of Raj Behari Ram was referred to the 9th Industrial Tribunal under Section 10 read with Section 2A of the Industrial Disputes Act, 1947 with the issue whether the dismissal of the workman concerned are justified or not. It is contended that since the workmen were not dismissed but discharged, such a reference was bad.
4. The further contention of the petitioner company is that the Award and the entire proceeding are vitiated inasmuch as the Tribunal heard both the references analogously after consolidating the same although the Industrial Tribunal have no such power of consolidation of proceedings.
5. It has been further contended on behalf of the petitioner that the Award of the Tribunal is perverse inasmuch as material evidence was not taken into considerations and some of the findings were not based on any evidence at all.
6. It has also been contended that in any event the Tribunal could not have directed the reinstatement of the workmen as the petitioner company lost confidence on the workmen.
7. Mr. Amitabha Chowdhury, learned Counsel appearing for the petitioner company in support of the contention that the Tribunal had no jurisdiction to consolidate the two dispute cases and therefore, such consolidation was wholly without jurisdiction vitiating the entire process including the Award, has contended inter alia, that unlike the Court a Tribunal has no inherent jurisdiction and under the Industrial Disputes Act only those powers under the Civil Procedure Code, to produce documents and witnesses under Sections 11(3) and 11(4) of the Industrial Disputes Act and Rule 24 of the Industrial Disputes Rules have been conferred on the Industrial Tribunal: There is no provision in the Statute which empowers the Tribunal to consolidate two dispute cases. Therefore, the Tribunal could not consolidate two cases, hear the same analogously and dispose of the same by a common award. In his connection he has relied on a decision of this Court in the case of Ganga Ram Tea Co. v. 2nd Labour Court and Anr. reported in 71 CWN 14 where it was held by B.C. Mitra, J that the Industrial Tribunal is a statutory authority and therefore, has no inherent power as also in the case of Sushil Kumar Sen Gupta v. State Transport Authority and Ors. reported in 70 CWN 341 where the same view Was taken.
8. It is to be noted however that it has been provided under Section 11(1) of the Industrial Disputes Act, which deals with the procedure and power of Conciliation Officer, Board, Court and Tribunal that subject to any rule that may be made in this behalf, an Arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the Tribunal or other, authority concerned may think fit. The provisions of the said Act is of the widest amplitude and empowers the tribunal to follow any procedure which it thinks fit, subject to any rule that may be made in that behalf. But there is no bar either in the said Act or in the Rules made therein prohibiting the Tribunal from consolidating two dispute cases and adjudicating the same analogously when it thinks it fit and proper. It is not the case of the petitioner company that it suffered any prejudice for such consolidation or facts and circumstances the case did not justify to following of such procedure by the Tribunal. In the case of Grindlays Bank Limited v. Central Govt. Industrial Tribunal and Ors. reported in (1991-I-LLJ-327) it was held by the Supreme Court inter alia that it is a well known rule of statutory instruction that a Tribunal or a body should be considered to be empowered with such ancillary or incidental powers as necessary to discharge its functions effectively for the purpose of doing justice between the parties and the words used in Section 11(1) of the said Act "shall follow as the Arbitrator or other authority may think fit" are of the widest amplitude and confer ample power upon the Tribunal and other authorities to devise such procedure as the justice of the case demands. In the case of Shramak Sangh Bombay v. Indian Hume Pipe Company Limited and Anr. reported in (1993-I-LLJ-965) the Supreme Court following its earlier decision in the case of J . K Cotton Spinning and Weaving Mills Co. Ltd. v. L.A. Tribunal of India reported in (1963-II-LLJ-436) held inter alia that Industrial tribunal is not bound by technical rules of procedure which binds the Civil Court.
9. Factually, also it will appear no wrong was committed by the Tribunal by hearing the aforesaid two cases analogously, common questions of law and fact being involved and witnesses also being the same and the issues in both the cases also being the same and all the workmen belonging to the same unit of the company namely at Durgapur Unit as Durwans in the Security Department and the domestic enquiry against them also having been held analogously.
10. In fact, this aspect of the matter was dealt with by the learned Judge of the 9th Industrial Tribunal at the very body of the award, namely para 2 and 3 thereof, and after considering all aspects of the matter and being of the view that as similar points were involved and as there was challenge to the fairness of the enquiry by the Union and it was proper to take up the point of fairness of the domestic enquiry at the first instance, the Tribunal thought it proper to take up the hearing of the cases analogously. The most important things to note that at that point of time not only the workmen did not object, even the petitioner company which is now so vociferous before this Court in this writ proceeding against such analogous hearing did not raise any objection to the same but actually very much participated in the proceedings of the Tribunal which heard the two cases analogously.
11. Such contention of the petitioner company therefore, is not only run tenable the same is also wholly misconceived and the petitioner company is estopped from raising such points in the writ proceedings.
12. It has been sought to be argued by Mr. Chowdhury relying on the decision of the Supreme Court in the case of United Commercial Bank v. Their Workmen reported in (1951-I-LLJ-621) that consent does not give jurisdiction to the Tribunal.
13. The aforesaid case is clearly distinguishable and the principle laid down by the Supreme Court in the said case is not applicable in the instant case. In the said case it was held that it was necessary for due constitution of an Industrial Tribunal to issue a notification or order by the appropriate Government under Section 7 of the Industrial Disputes Act the number and the names of the members as given in the notification form an essential or integral part of the Tribunal thus constituted. It was further held by the majority judgment in the said case that where services of one member have ceased to be available, he cannot sit again with the other members to form the Tribunal in the absence of a notification under Section 7 and the rest by themselves have no right to act as the Tribunal, without the Government reconstituting the Tribunal thereby and therefore all proceedings of the tribunal in absence of such a member would be void and null and cannot be cured by consent.
14. In the instant case, as pointed out ; hereinbefore, Section 11(1) of the Industrial Disputes Act itself empowers the Tribunal to follow any procedure which it thinks proper and the Tribunal in the instant case analogously heard both the cases as the Tribunal thought it fit and proper to follow such procedure. The provisions under Section 11(1) of the said. Act deals not with the power or jurisdiction of the Tribunal, but with the procedure which may be, followed by the Tribunal as held by the Supreme Court in the said case of Grindlays Bank Ltd. (supra).
15. It is not, therefore, a case of giving consent relating to assumption of jurisdiction by the Tribunal which it lacked, but it is a case of a procedure followed by the Tribunal which the Tribunal was empowered to follow being of the opinion that the same is fit and proper and the petitioner company consented to the same.
16. The aforesaid contention of the petitioner company therefore, is wholly misconceived and in my view, is one of the glaring examples of the attempt of the employer to drag the workmen, who have become successful before the Tribunal, through the maze of never ending litigation for the purpose of tiring them out.
17. As to the challenge of the petitioner company relating to the merits of the award it is now well settled through different judicial pronouncements that the writ Court will not sit as a Court of appeal in such a case and will not scrutinise the award for the purpose of re-assessing or reappraising the evidence nor could it substitute its own satisfaction for that of the Tribunal and there can be interference by the writ Court with an award of the Tribunal only if there is any perversity in the award or there is some legal instructions or no reasonable man would come to the finding arrived at the Tribunal on the evidence on record. As it has been held by the Supreme Court in the case of Calcutta Port Sharamik Union v. Calcutta River Transport Association and Ors. reported in (1989-I-LLJ-223) that an attempt should be made by Courts exercising powers of judicial review to sustain as far as possible the awards made by Industrial Tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the Tribunals by striking down awards on hyper-technical grounds. In the case of Parry & Co. Ltd. v. P. C Lal reported in (1970-I-LLJ-429) Supreme Court was pleased to hold that "a mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak as an appeal in disguise, but a manifest error apparently on the face of the proceeding issued on a clear ignorance of its record or the provisions of law or absence or excess of jurisdiction, when shown can be so corrected. When the learned Tribunal having jurisdiction to decide a question comes to a finding of fact, such finding is not open to question under Article 226 of the Constitution unless it could be shown to be wholly unwarranted by the evidence and when the learned Tribunal has disabled itself extraneous to the evidence and the merits of the case or where its conclusion on the very face of it shows wholly arbitrary and capricious that no reasonable man can ever have arrived at the conclusion interfere under Article 226 would be justified.
18 In the ease of Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha reported in (1980-I-LLJ-137) held thus: at p. 149 "The anatomy of a dismissal order is not a mystery, once we agree that substance, not semblance, governs the decision. Legal criteria are not so slippery that verbal manipulations may outwit the Court. Broadly stated, the fare is the index to the mind and an order fair on its face may be taken at its face value. But there is more to it than that, because sometimes words are designed to conceal deeds by linguistic engineering. So it is beyond dispute that the form of the order, or the language in which it is couched is not conclusive. The Court will lift the veil to see the true nature of the order.
Many situations arise where Courts have been puzzled because the manifest language of the termination order is equivocal or misleading and dismissals have been dressed up as simple termination. And so, judges have delved into distinctions between the motive and the foundation of the order and a variety of other variations to discover the true effect of an order of termination. Rulings are a maze on this question but, in sum, the conclusion is clear. If two factors co-exist, and inference of punishment is reasonable though not inevitable. What are they?
******** ******** The second limb of the argument was that a writ of certiorari could not be issued to correct errors of facts. In this connection after affirming the ratio in Engineering Mazdoor Sabha v. Hind Cycle Ltd (1962-II-LLJ-760) this court observes that what is important is a question of law arising on the face of the facts found and its solution ex facie or sub silentio. The Arbitrator may not state the law as such ; even then such acute silence confers no greater or subtler immunity on the award than plain speech. We do not dilate on this part of the argument as we are satisfied that be the test the deeply embedded rules to issue certiorari or the traditional grounds to set aside an arbitration award, 'thin partition do their bounds divide' on the facts and circumstances of the present case. Broadly stated, the principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi-Judicial Tribunals or administrative bodies exercising the quasi judicial powers within the leading strings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act. So long as the hierarchy of Officers and appellate authorities created by the statute function within their ambit the manner they do so can be no ground for interference. The powers of judicial supervision of the High Court under Article 227 of the Constitution (as it then stood) are not greater than those under Article 226 and it must be limited to seeing that a Tribunal functions within the limits of its authority (see Nagendra Nath Bora v. Commr. of Hills Division & Appeals, Assam, . This lead to a proposition that in exercising jurisdiction under Article 226 the High Court is not constituted a Court of Appeal over the decision of authorities, administrative or quasi-judicial. Adequacy or sufficiency of evidence is not its meet, it is not the function of a High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence [See State of A. P. v. S. Sree Rama Rao (1964-II-LLJ-150) (SC). A constitution Bench of this Court in P.H. Kalyani v. Air France, Calcutta, (1963-I-LLJ-679) succinctly set out the limits of the jurisdiction of the High Court in dealing with a writ petition. It was said that in order to justify a writ of certiorari it must be shown that an order suffers from an error apparent on the face of the record. It was further pointed out that if the finding of fact is made by the inpugned order and it is shown that it suffers from an error of law and not of fact, a writ under Article 226 would issue, and, while so saying, the decision in Nagendra Nath Bora's case was affirmed. Following the aforementioned decision, the Gujarat High Court in Novin Chandra v. Manager, Ahmedbad Co-op. Deptt. Stores Ltd. 1978 19 Guj. LR 108 at p. 140 observed that the amended Article 226 would enable the High Court to interfere with an Award or the Industrial Adjudicator if that is based on a complete mis-conception of law or it is based on no evidence, or evidence or that no reasonable man would come to the conclusion to which the Arbitritor has arrived.
Even apart from, but while approving, the Gujarat ruling in (supra) cited before us we are satisfied that the writ power in larger given illegality and injustice, even if its use is severely discretion as decided cases have repeatedly laid down. We overrule the objection of invalidity of the High Court's order for want of power."
19. In the case of Sadhu Ram v. Delhi Transport Corporation reported in (1983-II-LLJ-383) held thus: at p 384 "We are afraid the High Court misdirected itself. The jurisdiction under Article 226 of the Constitution is truly wide but for that very reason it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an Appellate Court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to re-adjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdiction facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction the High Court may be justified in interfering. But where the tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the Management. There was a concilation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court."
20. In the case of Workmen of English Electric Co. of India Ltd. Madras v. Presiding Officer and Anr. reported in (1990-I-LLJ-344) it has been held by the Supreme Court that quantam of evidence or appreciation thereof for recording finding of facts would not come within the purview of the High Court's Extraordinary jurisdiction under Article 226 of the Constitution. Keeping such principles in mind if the Award is examined, no infirmity calling for interference by the writ Court, is detected.
21. In support of his contention that the award cannot be sustained the same being perverse the following contentions were raised by Mr. Chowdhury.
(a) Both K. B. Dalrami and A. K. Patra in their reply to the charge-sheet (vide pages 23 and 24 of the writ petition) in identical language stated "that on July 14, 1980 I was on duty from 10 P.M. to 6 A.M. inside the factory". In spite of such evidence the Tribunal in its award (page 112. of the writ petition) has stated that there is no evidence that the workmen took active part in the incident of theft. The Tribunal did not consider that active participation in the theft was never alleged for proving negligency of duty, is not necessary to prove that they took active part.
(b) The award is perverse as the learned Judge of the Tribunal in the award has stated that as dereliction of duty was not mentioned in the F.I.R. dereliction of duty was not proved. It has been contended that reference by the Tribunal to the absence of the charge of dereliction of duty in the F.I.R. is thoroughly irrelevant as the purpose of the F.I.R. was different, namely only to report the theft/ robbery to the police and hence the award is perverse.
(c) It was totally overlooked by the Tribunal that K. B. Dalrami and and A. K. Patra did not come at all before the Tribunal to depose or deny the charges and no witness was examined by the Union in their behalf.
(d) The evidence before the Tribunal was such that no reasonable person could arrive at the conclusion made in the award.
(e) The learned Judge of the Tribunal consciously formed opinions and recorded findings knowing them to be wrong and contrary to the evidence on record.
22. I am unable to accept the contention of Mr. Chowdhury that the impugned award is perverse or has been arrived at overlooking evidence or contrary to evidence. The reference to the award as also materials on record would clearly indicate that after careful consideration of the same the Tribunal formed the opinion that the charge against the workmen could not be proved. Even if, one of the findings of the Tribunal in giving such award may be wrong, the same ipso facto does not vitiate the award or make the same preverse, if there are materials and evidence to support the findings of the Tribunal.
23. As pointed out herein before, the Supreme Court in the case of Calcutta Port Shramik Union v. Calcutta River Transport Association and Ors. (supra) held in exercise of powers of judidal review the High Court is not supposed to be hyper-technical nor it is the duty of the High Court to pick up holds here and there for the purpose of striking down the award.
24. The charge against the workman was to the effect that they were working as Durwan to guard property of the Durgapur Unit of the company. On July 14, 1980 a theft took place when a number of articles were removed; such theft was believed to have taken place in the night between 10 P.M. and 6 AM. during which they were posted on duty and if they had been vigilant, they would have surely noticed the thief and theft would not have taken place. The above conduct amounts to dishonesty in course of their duty for furtherence of personal gain coupled with utter dereliction in duty.
25. As regards K. B. Dalrami he was dismissed from service on July 27, 1981 after facing a domestic enquiry in respect of such charges levelled against him. The Inquiring Officer however, did not find him guilty of such mis-conduct, but the employer disagreed with the said finding of the Enquiry Officer and dismissed the employee. Although the Tribunal was of the view that the domestic enquiry against him was fair and proper, in the impugned award the learned Judge came to a finding that the dismissal of K. B. Dalrami is liable to be set aside and he very much stressed on the facts that the managment failed to produce any proper evidence to prove his misconduct and inspite of the act that the Enquiry Officer exonerated him. After examining the evidence and charges by the petitioner company before the Tribunal, the learned Judge is of the view that the management failed to prove the alleged misconduct of K. B. Dalrami namely dishonesty for personal gain and derelication of duty and the evidence of the management in respect thereof was not sufficient and proper. Although Mr. Chowdhury appearing for the petitioner company has tried to contend, after taking the Court through the evidence of the management that such misconduct was proved, I am unable to accept such contention of Mr. Chowdhury. That apart, even though, going through the evidence it might be possible for this Court to have a view different from the Tribunal, in exercise of writ jurisdiction this Court cannot substitute its own satisfaction for that of the Tribunal and the finding of the Tribunal is liable to uphold as the view taken by the Tribunal is possible on the evidence and material on record.
26. As regards A. K. Patra the Tribunal declined to accept the uncorroborated oral testimony of P. W. 1 and was of the view that his deposition was not sufficient to prove the charge levelled against A. K. Patra. The fact that P. W. 1 could not give any evidence as to any active part taken by the workmen including the said Patra in the theft was taken note of. The Tribunal accepted the evidence in favour of the workmen that the miscreants attacked them in night and tied them up. The deposition of P.W. 1 regarding the said charge that as only new bearings were stolen and only an expert eye could tell which one is a new bearing, such theft could not have taken place without the active help of workmen was rejected by the Tribunal on the ground that the workmen were posted as Durwans and they were not experts and how a Durwan will know where the new bearings were kept when there is no evidence that the Durwans were aware of the exact place where the new bearings were kept. As to the allegation of dereliction of duty against Shri Patra the only evidence of P.W. 1 was that as Patra was on duty at the Shop Floor and at the boundary walls along with Dalrami and as one must keep such distance from the other while patrolling that if any one be attacked the other could raise an alarm and as the same were not done they were not performing their duties properly and there were dereliction of duties. The Tribunal rejected such evidence of management not on the only ground that in the F.I.R. there was no mention of dereliction of duty. The Tribunal in coming to its finding that dereliction of duty or the negligence of the duty could not be established relied on the evidence. The Tribunal is of the view it was necessary to see what was the exact duty of Patra on the night of occurrence and then to see whether there was any such negligence or dereliction in his said duty, but the management failed to prove the same. The Tribunal considered the fact, in favour of the workmen that although P.W. I deposed that Patra was verbally instructed by the Clerk In-Charge to be on duty at a particular place, there is no supervising staff for the allotment of duty to the security guards and such a Clerk In-Charge, Shri Jogodish Karmakar was never examined to prove what was the exact nature of duty allotted to him on the said night.
27. Mr. Chowdhury, in support of his submission that such finding of the Tribunal consequentially the award is perverse has drawn the attention of the Court that K. B. Dalrami and A. K. Patra in their reply to the charge-sheet dated July 14, 1988 admitted they were on duty as Durwan which was not considered by the Tribunal. It has also been submitted that absence of the charge of dereliction of duty in the F.I.R. is wholly irrelevant and cannot be a ground for rejection of such evidence inasmuch as purpose of lodging the F.I.R. is not dereliction of duty but theft. It has also been contended that the Tribunal also failed to consider neither K.B. Dalrami nor A. K. Patra came before the Tribunal to deny charges.
28. Absence of allegation of dereliction of duty in the F. I.R. no doubt cannot be a ground for rejecting the evidence of P.W. 1 as to the allegation of dereliction of (sic.) duty against the workmen and it has rightly been pointed out by Mr. Chowdhury that the purpose of F.I.R. is to report about commission of an offence which in the instant case was theft and not dereliction of duty of the employees of the factory.
But the Tribunal has not rejected the evidence of the management as to the allegation of dereliction of duty only on such ground alone, but on other grounds also.
As pointed out herein before that the fact Jogodish Sarkar who allegedly allotted duty to the workmen verbally was not even examined and no document was produced by the management to show what was the exact nature of duty allotted to the workmen on the day of occurrence. The fact that the workmen were admittedly Durwans and according to them they are in duties inside the factory although may be relevant but conclusive for the purpose of;
ascertaining what is the exact nature of duty they were performing and whether there was dereliction of duty in respect thereof and in absence of such materials it was certainly open to the Tribunal to reject such evidence.
29. The fact that K. B. Dalrami and A. K. Patra did not depose before the Tribunal to deny charges and no witness as examined by the Union in this behalf cannot be material. Apart from the fact that Patra died during the pendency of the reference it was for the management to prove charges of misconduct against the delinquent and it was not for the delinquent to disprove the same.
30. The further complaint of Mr. Chowdhury against the impugned award of the Tribunal that no reasonahle person could have arrived at the conclusion arrived at by tribunal. On the materials on record and the Tribunal consciously, formed opinions and recorded findings knowing them to be wrong and contrary to the evidence on record are also not tenable. Mr. Chowdhury has failed to substantiate his aforesaid allegation.
31. Because of such allegations made against the Tribunal I have gone as also the deposition and after such examination it can hardly be said that on materials and evidence on record opinions formed by the Tribunal could not have been formed by a reasonable man.
32. As regards the contention of the management that the evidence against Shri Patra for not raising of alarm by him after the theft would indicate his dereliction of duty was discussed in detail by the learned Judge in para 20 of the award and such contention has also been rejected by him giving cogent reason.
33. It has been sought to be argued that failure of the Durwans including Shri Patra to raise any alarm even in the morning amounted to dereliction of duty. After noting such aspect of the matter the Tribunal did not come to such a finding not arbitrarily but inter alia because of the fact that P.W. 1 in his evidence did not allege that the explanation which Durwans offered for their failure to raise alarm as referred to evidence of P.W. 1 was not accepted and the Tribunal accepted such explanation.
34. As regards Raj Behari Ram against him the charge was that his conduct amounted to dishonesty and dereliction of duty, since as a security durwan of the company he did not come forward to assist his co-employees in the night of the occurrence.
35. The Tribunal while exonerating Raj Behari Ram from said charge inter alia has relied on the fact that Shri Ram was allotted a residence within the factory premises and on the said night of incident he was off duty.
36. The Tribunal held that the domestic enquiry against the said workman was not fair and proper and the employer was given opportunity to establish the guilt of this accused as specified, in the chargesheet by adducing independent evidences. In pursuance of such direction of the Tribunal the company examined in all 5 witnesses. Out of the 5 witnesses the only witness who deposed against Shri Ram was P.W. 1. The Tribunal however was hesitant to accept the evidence of P.W. I as from his close examination it appeared that his relation with the security guards were not happy and normal and his evidence was not corroborated by evidence of any other witnesses including the P.W. 2 who accompanied P.W. 1 to factory. The Tribunal noted that P.W. 2 did not say anywhere in his evidence that Raj Behari Ram was loitering within the factory compound or coming from canteen side. He did not say anywhere that on interrogation by O.C. Security Guard Shri Nabagopal Ghosh told police that Shri Ram had not rendered any help to them even by giving water on demand. The Tribunal did not accept the evidence against K..B. Dalrami that during the interrogation P.W. 1 told him adversely against Shri Ram, as there is no evidence when such interrogation was made and the said Durwan never deposed against Raj Behari Ram before the Tribunal.
37. After considering all evidences the Tribunal was of the opinion that P.W. 1 failed to satisfy the Tribunal regarding the nature of duty, of Raj Behari Ram and the explanation given by Ram that at the night of occurrence he was asleep and he did not know the incident and he supplied water to the security guard from outside and did not notice their condition, was accepted by the Tribunal. The Tribunal also did not accept the evidence of P.W. 2 against Raj Behari Ram.
38. It will thus appear from the facts stated herein above that material on evidence, can certainly warrant such finding of the Tribunal that the charges against the workmen were not proved. On such materials the aforesaid findings of the Tribunal is quite plausible. Under such circumstances it is not for this Court in exercise of writ jurisdiction to find out fault in the finding of the Tribunal here and there, but to sustain the award the same being based on evidence. In my view, the petitioner company has failed to satisfy the Court that the award of the Tribunal is perverse.
39. It has also been argued on behalf of the writ petitioner company that in any view of the matter, the Tribunal ought not to have directed reinstatement of the workman as the petitioner company had lost confidence upon them. It is submitted even if a workman succeeds in a reference before the industrial Tribunal and the Tribunal quashes the order of termination, the reinstatement does not follow automatically and there cannot be any reinstatement if there is loss of confidence.
40. Although in case of loss of confidence upon the workmen by the Management, the Tribunal may refuse the relief for reinstatement, in my view there has to be bona fide opinion of the employer about such loss of confidence and the plea of loss of confidence. cannot be raised at any stage for the purpose of defeating the relief of the workmen for reinstatement. The loss of confidence being a mental process of the employer a bona fide option in respect thereof is required to be formed, which is totally lacking in the instant case.
41. At the domestic enquiry which was held against the workmen such plea of loss of confidence was not raised either in the charge-sheet or in evidence advanced before the domestic enquiry. Before the Tribunal the Petitioner company in its written statement never raised such plea of loss of confidence and also did not adduce any evidence in respect thereof when evidence was taken by the Tribunal. The Enquiring Officer in the domestic enquiry in its report after holding inter alia that the charges has been proved in case of some of the workmen held that consequentially the company lost its confidence because of the same, which however was not based on any evidence, but the same was surmises and conjectures of the Enquiry Officer. Such observation of the Enquiring officer may be his own opinion but not opinion of the petitioner company who was the employer before the Tribunal. Only at the time of hearing, this plea of loss of confidence was raised for the first time by the learned Advocate appearing for the petitioner company. But he was unable to satisfy the Tribunal upon what materials it can be said that the company lost the confidence upon the workmen. The learned Advocate appearing for the petitioner company before this Court also apart from raising such plea of loss of confidence and referring different decisions of the Supreme Court; has failed to satisfy this Court on the basis of what material or evidence or pleadings it can be said that the petitioner company formed bona fide opinion that it had lost confidence upon the workmen concerned.
42. After considering all the materials on records and submision of both the parties I am of the view the no bona fide opinion was ever formed by the petitioner company that it had lost its confidence upon the workmen and such a plea was raised at the time of hearing before the Tribunal for the sole purpose of defeating the remedy of the workmen for reinstatement, a practice which has been very much deprecated by the Supreme Court. As held by the Supreme Court in the case of L. Micheal v. Johnson Pump Ltd. reported in (1975-I-LLJ-262) that loss of confidence is often a subjective feeling for individual reaction to an objective state of facts and motivation and if the Court is concerned with latter and not with the former and such belief or suspicion of the employer should not be a mere whim or fancy, but should be bonafide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively with good faith which means honestly with due care and prudence.
43. The learned Advocate appearing for the petitioner company to substantiate his aforesaid case of refusal of reinstatement in case of loss of confidence has relied on the decisions of the Supreme Court in the case of Air-India v. A. Reballow reported in (1972-I-LLJ-501), in the case of Binni v. Workman , in the case of Saraswati Tea Co.v. State of W.B, reported in 80 CWN 746 and L. Micheal v. Johnson Pump reported in (supra).
44. As pointed out hereinbefore in the aforesaid case of L. Midwal (supra) it was held by the Supreme Court that the plea and suspicion of the employer as to the loss of confidence cannot be a mere whim or fancy. It should be bonafide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively with good faith which means honestly with due care and prudence. Such decision therefore, is against the petitioner than in his favour. The other decisions relied upon by the petitioner company are also of no help as in such cases the Supreme Court held inter alia there cannot be any reinstatement obviously because the Supreme Court was of the view that there was bonafide opinion of the employer about such loss of confidence.
45. The Supreme Court in the case of Chandulal v. Management, Pan American World Air-ways reported in (1985-II-LLJ-181) also was of the view that the reinstatement cannot be granted to the workmen as there were loss of confidence of the employer. But in the said case also bonafide opinion was formed as to such loss of confidence and in fact in the said case in the very order or of termination it-
was stated that as the employer lost confidence upon the workman his service is being terminated, the same was also specifically pleaded before the Tribunal and evidence was also led to that effect, which are all wanting in the instant case.
46. There have been no materials, therefore, before the Tribunal to show that there is any bona fide opinion as to such alleged loss of confidence upon the workmen. Such plea was raised for the first time at the time of argument before the Tribunal by the learned Advocate for the company and was rightly rejected.
47. It has also been contended by the petitioner company that the Tribunal ought not to have granted any reinstatement as the same would cause dislocation of work. On the aforesaid point the petitioners have relied on the decision in the case of Chamber Cooperative v. M.K. Chatre and in the case of Binni v. Workmen (supra). It has been contended that after workmen concerned were discharged the company employed M/s. Anapol (India) Pvt. Ltd. and M/s Industrial Security & Services by directive guard; service at its Durgapur factory.
48. Such a plea however has been raised by the petitioner company for the first time before this Court in this writ jurisdiction. Such a plea was never raised before the Tribunal. No such stand was taken before the Tribunal either in the written statement or in the evidence as a result whereof the Tribunal had no occasion to go into such question. In the writ petition also no particulars have been given as to when such agencies were appointed for guarding the factory. In any event, the question whether in case of reinstatement there might be a dislocation of work is also very much a question of fact and the employer never having made out any such case before the Tribunal nor having led any evidence in respect thereof cannot be permitted to raise such point for the first time before the High Court in its writ jurisdiction.
49. It has been also argued by Mr. Chowdhury that the very reference is bad inasmuch as although the workmen were discharged from service, the reference which has been made before the Tribunal stated that the workmen were dismissed from such service.
50. I am, however, unable to accept the contention that because of the same the reference will be bad or the same is infirmity which will vitiate the entire proceeding and the award. As pointed out herein before the charges against the workmen was dereliction of duty and dishonesty for personal gain. In the final order which was passed it was recorded that although the charges were of grave nature and merit dismissal, the workmen were being discharged.
51. The Tribunal has, in my view, rightly held that although the impugned order was styled as an order of discharge, such order is really an order of dismissal and the same has all the elements of dismissal for misconduct which was passed after holding domestic enquiry and after framing a chargesheet. In whatever manner the order of termination is called whether discharge or dismissal, fact remains such order was passed by way of punishment after holding the domestic enquiry, on the basis of a charge of misconduct and such order of so-called discharge was not merely an order of termination simpliciter. It cannot be said therefore, the reference to the Tribunal was vitiated because of the order of discharge of the workmen was described as an order of dismissal. Because of the reasons stated above, in my view, description of such order as an order of dismissal in the aforesaid reference if at all may be an irregularity, certainly not an infirmity which vitiates either the reference or the proceedings initiated thereon.
52. Both the writ applications therefore fail. The writ application namely C.O. 7933(W) of 1983 and C.O. 7936(W) of 1988 are dismissed with costs assessed at 100 G.M. each. All interim order if any, stand vacated.
53. Award passed by the Tribunal shall be implemented by the respondents forthwith but not later than two months from date.