Bombay High Court
West Coast Paper Mills Employees Union vs A.B.M. Shaikh And Ors. on 4 February, 1999
Equivalent citations: [1999(82)FLR302], (2000)IIILLJ374BOM
JUDGMENT N.J. Pandya, J.
1. The Union of the Respondent No. 2- Company has filed the present petition challenging the Award passed by the Presiding Officer of the Seventh Labour Court, Bombay on October 21, 1995 in Reference No. (IDA) No. 1039 of 1987.
2. Facts leading to the Reference are very short:
On or about June 19, 1987 at about 11.45 a.m. one Shri N.D. Mohta, Vice President and overall in-charge of Sales Department of Respondent No. 2 while taking round in the office enquired from the workman Shri G, Sethuraman, a stenographer, hereinafter referred to as workman, as to what he was typing on the typewriter. The said workman was working in the sales department. The workman answered the query by asserting that he was typing some letter of the respondent No. 2 company. The said Mr. Mohta got suspicious and took out all the papers including carbon papers from the typewriter. He found letterhead of an advocate and it appeared that the workman was typing a letter of an advocate as a part of his private work.
3. This action resulted into checking of the drawer of the workman, panchanama was drawn in presence of one Mr. J.V. Desai as also one Mr. Kothari and finally the respondent No. 2 took action of issuing an order of simple discharge with one month's notice to be paid. Naturally this action was contested and ultimately it landed up before the Labour Court by way of said Reference. The award dated October 21, 1995 agreed with the case of the respondent No. 2-company and held that it was a discharge simpliciter based on loss of confidence. On behalf of the petitioners, it was strenuously urged that the Labour Court ought not have accepted the case of the employer on the aforesaid lining and when it was clearly a case of stigmatizing the workman, there had to be an enquiry and a finding of guilt recorded. This not having been done, the action of the company must be struck down.
4. In the alternative, it was submitted that assuming for the time being that the existing guilt of the workman is established and called for punishment, the punishment of removing from work by terminating his services is shockingly discriminating to the alleged action.
5. On behalf of the petitioner, with regard to the said alternative submission, the alleged act of misconduct of the workman was summarized as only typing out private letter in the office during working hours. In absence of any past record, indicating that the workman was culpable (sic), submission was made to the effect that the dismissal was unwarranted.
6. So far as the alternative submission is concerned, it has been strongly urged that this was never pleaded before the trial Court and for this purpose statement of claim was referred to. There is no indication whatsoever of the plea, even in the alternative, as to the punishment being shocking and disproportionate.
7. Reliance is placed with regard to the requirement of the looking to the past conduct especially when in the course of arguments before the trial Court it was pleaded on behalf of the workman that he having worked for almost 21 years with the respondent-company, had an unblemished record and therefore the punishment is disproportionate. For this purpose on behalf of the Respondent- company reliance was placed on in the case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and Anr. with relevant remarks.
8. The approach of the trial Court while dealing with the said submission under Section 11-A is quite interesting. It records the fact that this is not a case of punishment at all as it is a case of simple discharge. Hence quantum is not to be gone into. This is to be found at page 227 with discussion starting on the previous page 226 at the bottom of the continuing paragraph 23 which starts at page 222. The learned Judge held that the quantum of punishment has nothing to do with the simple discharge of the workman. This exactly is (sic) what has been submitted on behalf of the respondent-company. I agree with them.
9. Even if this is to be considered according to the Supreme Court judgment, when opportunity is denied for want of pleading and therefore the respondent company could not bring on record anything with regard to the past service record of the workman concerned, obviously it is likely to cause prejudice. I, therefore, hold that it ought not to have been considered by the trial Court at all in absence of pleading in that regard.
10. However, this need not detain me. Further if it is found to be a case of simple discharge then obviously there is no punishment which is required to be quantified nor is there any question of scaling up or scaling down the punishment.
11. While coming to the main point of the impugned action of the respondent No. 2-company namely the order of discharge, in this regard evidence is led starting with that of the workman himself which is at Exh. E page 136. It may be briefly stated that he did try all throughout to make out a case that he was working for an advocate but it was at the instance of Shri B.L. Kothari, the Sales Manager. The Sales Manager has introduced him to the advocate and on payment, the workman was to type letters and other papers dictated by the advocate. The question would therefore be, whether it was during office hours or outside office hours. There is also a question whether he was doing this work after office hours, whether he was doing in office premises using the company's stationery or its typewriter.
12. The examination in chief starting from page 136 continues upto page 145 and a portion of page 146 upto 25 paragraph. The cross examination starts from paragraph 26 onwards page 146.
13. The workman referred to the surprise inspection carried out by Mr. N.D. Mohta and he also refers to the seizure of steno book or dictation book, stationery, typed letters etc. However, in paragraph 2 of his examination in chief he thus says that while stationery was that of the learned advocate, he was using office typewriter. He also admits that he was not giving preference to the work of the advocate when there was office work pending with him. He claims that the company knew about his doing the work of Mr. M.G. Miami, advocate. Then he refers to the said Mr. B.L. Kothari who according to the workman had introduced him to the advocate. He started doing this work from June-July, 1986.
14. During cross examination, paragraph 30, it has been brought out that even though according to him he was working after office hours, he was not working at the office of the advocate who had a typewriter. He was working in the office premises after office hours according to the workman.
15. Mr. B.L. Kothari has been examined. He has categorically stated that he had never instructed the workman to work for the advocate. He also denies that he had introduced the workman with the lawyer and had told the workman to work for him on payment. The deposition of Mr. Kothari goes unchallenged as there is no cross examination on behalf of the workman.
16. So far as the collection of material is concerned it is by way of Exh. C-7 and Exh. C-8. This part of the cross examination is at pages 152 and 153. The witness Mr. Desai has also been examined in whose presence the panchanama was drawn.
17. This exercise on the part of Mr. Mohta has brought about the fact that there were letters recovered from the workman addressed to different parties typed by him or the said advocate. The different parties are Parmeshwar Enterprises, Mohinder Singh & Co., and Sari Kala Kendra. This has been admitted by the workman. Letter which was actually taken out by Mr. Mohta from the typewriter was addressed to one Anand Textile Traders. It was incomplete. The claim of the workman was that it was not dictated fully.
18. Be that as it may, this aspect namely the workman doing somebody else's work in the office premises during office hours or as admitted by him after office hours is clearly established. This according to the company is the reason for them to take the aforesaid action. According to the company they are motivated to take the action because of this fact and this led or necessitated the company to hold the enquiry and establish the misconduct.
19. As against the petitioner's consistent stand all throughout that without holding an enquiry, just taking shelter because of the word discharge simpliciter, the respondent-company is trying to bring an end to the contract of service which has subsisted for almost 21 years.
20. It is also submitted on behalf of the petitioner that if at all the employer wanted to resort to the said procedure of discharge, when there is a stigma, the enquiry is a must.
21. Petitioner relied on the decision reported in the case of L. Michael and Anr. v. Johnson Pump Ltd. in respect of his contention that even in respect of discharge, enquiry is a must if stigma is attached. Noting the fact that loss of confidence is often a subjective feeling or individual reaction to an objective set of facts and motivations, the learned Judges admit that there could be circumstance to justify the genuine exercise of the power of simple termination. They also admit that the disciplinary enquiry cannot be fair in the matter involving responsible post being misused or a sensitive or strategic position being abused. In short as set out in paragraph 22, the action must rest on tangible basis and the power has to be exercised by the employer objectively in good faith which means honestly with due care and prudence.
22. The decision definitely lays down that if the exercise of such power is challenged on the ground of being colourable or mala fide or an act of victimisation or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be decided judicially.
23. Petitioners also relied on a decision reported in 1992 (1) CLR 474 in the case of Theatre Employees Union and Ors. v. S. V. Kotnis and Ors.. It is a decision of the learned single Judge of this Court where only evidence relied on was so-called admission of guilt. That too of as many as 12 employees within the span of more than one and half month after the alleged incident. The exercise of the employer's privilege of terminating the employees on the ground of loss of confidence was struck down by the Court. It involved the termination of 12 employees of a theatre. Though there were unsold tickets, auditorium was found full. Actions were taken against as many as 12 employees and the only material was alleged admission. It took almost one and half month for the employer to get this statement.
24. The aforesaid judgment merely indicate what has been laid down by the Supreme Court that when judicially decided if the test of objectivity is not made, with mere use of word discharge or the words loss of confidence cannot help the employer.
25. Petitioners heavily relied on the decision reported in 1985 (II) CLR 21 in the case of Chandu Lal v. The Management of Pan American World Airways Inc., in support of the proposition that even in case of loss of confidence enquiry is a must. Explaining what is loss of confidence when it is found that the alleged action of the employee amounts to dereliction on his part, the action is stigmatized and therefore the enquiry is a must. In the instant case the employer had found the workman one Chandu Lal along with co-employee to be indulging in the activity of smuggling.
26. However, the other side is ready with another case dealt with by the Hon'ble Supreme Court in the case of Kamal Kishore Lakshman v. The Management of Pan American World Airways Inc. and Ors. involving the same management in respect of another employee. This matter was moved before the Supreme Court by the co-employee of the Appellant of the previous matter, the judgment which is relied by the petitioners.
27. Explaining the position with regard to the case of loss of confidence in paragraph 11 at page 110, it has been held that if disciplinary enquiry has not preceded the prejudicial order in the case of a government servant the action would be bad while in the case of a workman the order could be justified even in the course of adjudication before the appropriate Tribunal under the Industrial Disputes Act, even though no enquiry had been undertaken earlier. The upshot of the judicial pronouncement with regard to the question of holding up enquiry or taking action without holding an enquiry cause to this. In case of private employee when his case is dealt with by the Industrial Court or Tribunal the employer can justify the action by leading necessary evidence before the Tribunal. This has been done in the instant case. Hence, the aforesaid submission of action being bad per se for want of enquiry cannot be accepted.
28. No doubt it has been strenuously urged on behalf of the petitioners, the approach of the Court below is totally uncalled for and when there is no material to hold that objectively this can be said that the respondent-company has sufficient reason to come to a conclusion of loss of confidence, the decision of the trial Court should be set aside.
29. The material in this regard has already been adverted to briefly. The action of the employee-workman doing private work during office hours or outside office hours inside the office premises and using the office facilities for the purpose is objectively also established and hence in my opinion the decision of the trial Court when found to be based on the material before it, there is no question of setting aside the same. The view taken by the learned trial Judge is on the basis of the oral and documentary evidence. The view taken by him cannot be said to be either unwarranted or illegal or perverse. The view taken by the trial Court is the one that would be reasonably taken on the basis of the material before him.
30. Reliance is placed by the respondent-company on the matter reported in in the case of Air India Corporation v. V.A. Rebello and Anr. . The case cited with regard to proposition of loss of confidence as it is (sic) evolved in the labour jurisprudence. This is the first major case in this regard. There the action of the employer was upheld when it was found that the workman concerned had in course of his duty with air hostesses was either misbehaving with them or was not behaving properly with them.
31. Respondent-company also relied on the decision reported in 1977 L.I.C. 602 in the case of Siddhanath Krishnaji Kadam v. Dadajee Dhackjee and Co. Pvt. Ltd. The case involved the order of discharge without holding enquiry. It was also the case of loss of confidence. It has been held that holding of an enquiry is not a must. However, unless it is alleged that the action is prompted by mala fide or is a colourable exercise it can not be challenged.
32. In the case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. (supra). However it is on the point whether the alternative plea of misappropriation penalty be considered or not. In the earlier part of this order, this aspect has been dealt with. This is on the point that when the matter is not completed in the statement of claim it is not open to the workman or the petitioner to urge the same.
33. The discussion so far clearly indicate that the termination on loss of confidence is permitted without enquiry. In case of a private employer if it is challenged before the appropriate forum, it is open to the employer to establish that it is based on relevant material. With regard to the alternative plea is it is quite clear that unless there be a punishment there is no question of deciding the quantum thereof. In case of discharge based on loss of confidence, there is no question to interfere with. In this view of the matter especially when it is not pleaded in the statement of claim, obviously even by way of alternative plea this request cannot be entertained. If it were to be entertained for the reason that it is only a discharge and not a punishment obviously the plea is not available.
34. The outcome is that the petition fails. It is rejected. Rule is discharged.