Gujarat High Court
Dipakbhai Manilal Gohel vs Mannesmann Rexroth(India) Ltd,(Now ... on 24 June, 2021
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR RECALL) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 3760 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== MANNESMANN REXROTH(INDIA) LTD,(NOW BOSCH REXROTH(INDIA)LTD.) Versus DIPAKBHAI MANILAL GOHEL ========================================================== Appearance:
MR KEYUR GANDHI with MR NISARG DESAI for NANAVATI ASSOCIATES for the PETITIONER(s) No. MR MUKESH H RATHOD for the RESPONDENT(s) No. MR PARITOSH CALLA for the RESPONDENT(s) No. ========================================================== CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI Date : 24/06/2021 IA JUDGMENT
1. The applicant is the original respondent no.1 and the opponents are the original petitioners and the original Page 1 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 respondent no.2.
2. This application is preferred seeking to recall the order dated 11.06.2019 passed by this Court in Special Civil Application No. 3760 of 2012 whereby the award dated 18.02.2011 passed by the Labour Court Ahmedabad in Reference (LCA) No. 1789 of 2000 has been modified and reference of opponent no. 1 has been allowed with a direction to the applicant - Company to reinstate the opponent no.1 with continuity of service and back-wages.
3. The brief facts leading to the present application is as under:
3.1. The opponent no.1 was one of the employees of the applicant - Company working as a Senior Clerk in the Company. It is averred that on 15.06.1999 the opponent no.1 misbehaved with his superior Mr. P.A.Joshi and therefore, this alleged serious misconduct on his part had led to the issuance of show-cause notice on 16.06.1999 whereby, the opponent no. 1 was suspended pending the inquiry and while seeking his reply, the applicant - Company also issued an office order on 28.06.1999 appointing one Mr. Ashwinbhai Panchal as an Inquiry Officer to inquire into the charges levelled against the opponent.Page 2 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021
C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 3.2. A detailed reply has been furnished by the opponent no.1 on 28.06.1999 in response to the said show-cause notice. As the reply was not acceptable, the inquiry was initiated. He also sought permission to engage an advocate and cross- examine the company's witnesses. Such a permission was granted. After availing the opportunities to the parties concerned, the inquiry was completed and the report was given by the inquiry officer on 04.04.2000 holding the charges to have been proved against the opponent no.1. 3.3. A second show-cause notice has been issued on 12.04.2000 along with the copies of the findings of the report of the inquiry officer and a detailed reply has been submitted by the opponent no.1 on 11.05.2000. However, not accepting such reply on 18.05.2000, he was terminated from the services.
3.4. The aggrieved opponent no.1 had moved before the Assistant Commissioner of Labour who referred the dispute for adjudication to the Labour Court, Ahmedabad vide Reference (LCA) No. 1789 of 2000. The Statement of Claim had been filed by the opponent no.1 on 10.07.2003 before the Labour Court challenging the action of termination from service by the applicant - Company.
Page 3 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 3.5. The Company filed its written statement on 18.12.2007, where the opponent's advocate filed a pursis stating therein that he was not challenging the legality and validity of the inquiry but, he was challenging only the findings of the inquiry and the punishment imposed.
3.6. The applicant - Company filed an affidavit by way of an oral evidence of its witness Mr. Hiren Shah. It also submitted the list of documents on 02.02.2010 and placed on record the investigation report of private agency saying that opponent no.1 had its own ownership firm in the name of 'Gohel Traders' and he was engaged in the business during the pendency of the reference proceedings. The witness of the applicant - Company was also cross-examined by the advocate of the opponent no.1.
3.7. Accordingly, the Labour Court partly allowed the reference on 18.02.2011 and directed the company to pay the lump-sum amount of compensation of Rs. 50,000/- in lieu of the reinstatement. The Labour Court also held that the findings arrived at during the inquiry proceedings were perverse. It also in the very breathe noted that the misconduct of the opponent no.1 since was found serious misconduct, the Page 4 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 lump-sum compensation has been given.
3.8. This award has been challenged before this Court in Special Civil Application No. 3760 of 2012. The Court admitted the petition on 26.03.2012.
3.8.1. As no one appeared from the company despite due service of notice, the Court heard the petition ex-parte and allowed the petition vide order dated 11.06.2019. It set aside the award of the Labour Court and directed the applicant - Company to reinstate the opponent no.1 with continuity of service and full backwages instead of payment of Rs. 50,000/- awarded by the Labour Court. The opponent no.1 personally visited the applicant - Company and handed over the copy of the order dated 11.06.2019, although, the order of the Court is not implemented till date.
3.9. In this backdrop of facts, it is the say of the respondent company in this application for recall that in the year 2014 or 2015, the authorized signatory of the applicant - Company handed over the signed vakalatpatra to the office of the advocate of the applicant - Company however, due to negligence of the registered clerk of the advocate of the applicant - Company, the Vakalatpatra could not be filed, Page 5 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 therefore, the name of the advocate for the applicant - Company was not shown on the board when the petition was notified for final hearing on 11.06.2019. 3.9.1. It is further contended that it was a bona fide mistake not to file the vakalatpatra and therefore, the present application has been preferred to recall the order as the same would cause serious prejudice to the applicant/company. 3.9.2. It is the grievance on the part of the applicant that earning of the opponent no.1 was to the tune of around Rs. 24,000/- per month while on suspension and when his matter came to be decided finally, it was overlooked by the Court at the time of directing reinstatement with backwages.
4. According to the applicant, it is a settled position of law that in the event of grave misconduct, the employer is bound to lose confidence in its employee and therefore, the employee may not be entitled to the relief of reinstatement with backwages and instead should be awarded the lump-sum compensation. Therefore, the present application with the following prayers: -
"(A) Your Lordships may be pleased to recall the order dated 11.06.2019 passed by this Hon'ble Court in Special Civil Application No. 3760 of 2012;Page 6 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021
C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 (B) Your Lordship may be pleased to list Special Civil Application No. 3760 of 2012 for final hearing and decide the matter after hearing both the parties on its merits;
(C) Pass such other and further order and orders as may be thought fit in the interest of justice."
5. This Court issued notice on 24.09.2019 and an advance copy came to be served upon Shri Mukesh Rathod, learned advocate appearing for the original petitioner - opponent no.1. It had been given to understand that not only this application for recall is being heard for a limited purpose of recall, but, the parties are permitted to even argue on merits while arguing this application for recall and accordingly, both the sides have extensively made their submissions along the line of their respective stands.
5.1. Accordingly, on the next adjourned date, both the sides have been heard on merits. The written submissions also have been given where the reliance has been sought on various decisions of the Apex Court.
6. Learned advocate Mr. Keyur Gandhi has urged that the reason why the matter has gone ex-parte is because there was non-filing of the vakalatpatra by the registered clerk and his affidavit to that effect also has been filed. Page 7 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 6.1. On merits, he urged that when the Labour Court found the inquiry perverse, it ought to have given an opportunity to the applicant to lead evidence which has not been done. Therefore also, there is a requirement for indulgence. 6.2. It is further emphasized by learned advocate Mr. Gandhi that the employer must be given an opportunity to adduce evidence once the Labour Court comes to a conclusion that the findings in the inquiry are perverse and baseless, more particularly, when the employer has sought an opportunity to adduce evidence before the Labour Court.
6.3. Reliance is placed on the decision on Bharat Forge Co. Ltd. vs. A.B.Zodge and Another; reported in (1996) 4 SCC 374, where the Apex Court recognized the right of the employer to adduce evidence before the tribunal or Court when disciplinary proceeding is held vitiated or where no inquiry is in fact held.
6.4. Similar view has been taken by the Apex Court in case of Neeta Kaplish vs. Presiding Officer, Labour Court and Another; reported in (1991) 1 SCC 517, where tribunal is expected under the law to avail opportunity to the employer to justify its action of termination/dismissal by leading fresh Page 8 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 evidence.
6.5. Various other decisions also have been relied upon and on the strength of ration of those decisions, it has been submitted that lump-sum compensation of Rs. 50,000/- was just and proper and the respondent would not be entitled to reinstatement with full back-wages and consequential benefits.
6.6. It is also emphatically urged that the judgment dated 11.06.2019 of this Court deserves to be recalled and the main petition be dismissed.
7. According to learned advocate Mr. Mukesh Rathod, the opponent no.1 was charged essentially for disobedience and misbehaviour with the superior. The opponent no.1 has also ventilated the grievance that the oral evidence of the complainant comprehended two more incidents of 09.06.1999 and 10.06.1999. In relation to the evidence, the witness in the oral statement also has spoken of the abusive language which was never the charge framed against the petitioner. It further urged that the Labour Court has rightly found the oral evidence at variance with the charge levelled against the petitioner. The Labour Court, according to learned advocate Page 9 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 Mr. Rathod, had rightly concluded that the charges de hors the notice were sought to be proved against the petitioner by oral evidence. Therefore, it found inconsistency and ambiguity in the charges and the notice. The findings during the inquiry were rightly held by the Labour Court as perverse on its elaborate and precise discussion in relation to the evidence adduced.
8. Having thus heard both the sides and also having examined the judgments/orders and other materials on record, it can be noticed that this Court had issued rule in the main petition and the applicant despite the service of notice of rule chose not to appear, which led the Court to decide the matter ex-parte. The opponent no.1/employee had not challenged the legality and validity of the inquiry before the Labour Court but, challenged the findings only, rendered in the inquiry.
9. Before this Court chooses to consider the request of recall of the judgment and order of SCA 3760 of 2012, apt would be to refer to some of the decisions which are sought to be relied upon by the original respondent and the present applicant.
9.1. Taking firstly the decision in case of Bharat Forge Co. Page 10 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 Ltd. vs. A.B.Zodge and Another; reported in (1996) 4 SCC 374, in this matter, the domestic inquiry was a focal point and the Court held that domestic inquiry may be vitiated either for noncompliance of the rules of natural justice or for perversity. The disciplinary action taken on the basis of vitiated inquiry does not stand on a better footing than the disciplinary action with no inquiry. It further emphasized the right of the employer to adduce evidence in both the situations and the employer is also entitled to adduce the evidence for the first time before the tribunal even if the inquiry was not held or the inquiry held by the employer found perverse. Before the Apex Court, it appears that before closure of proceedings, the prayer made by the employer was to lead evidence in support of the order of dismissal.
"7. A domestic enquiry may be vitiated either for non- compliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well-recognised. In this connection, reference may be made to the decisions of this Court in Workmen of Motipur Sugar Factory (P) Ltd. Vs. Motipur Sugar Factory (P) Ltd. (1965 (II) LLJ 162 (SC>). State Bank of India Vs. R.K.Jain (1971 (III) LLJ 599 (SC>). Delhi Cloth General Mill Co. Ltd. Vs. Ludh Budh Singh (1972 (1) LLJ 180 (SC>) and Firestone Tyre Co.s Case (supra). The stage at which the employer should ask for permission to c additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General Page 11 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 Mill's case (supra). In Sankar Chakrabarty's case (supra), the contention that in every case of disciplinary action coming before the Tribunal, the Tribunal as a matter of law must frame preliminary issue and proceed to see the validity or otherwise of the enquiry and then serve a fresh notice on the employe- by calling him to adduce further evidence to sustain the charges, if the employer chooses to do so, by relying on the decision of this Court in the case of Cooper Engineering Ltd. (1975 (2) LLJ 379 (SC>), has not been accepted. The view expressed in Delhi Cloth Mill's case (supra) that before the proceedings are closed, an opportunity to adduce evidence would be given if a suitable request for such opportunity is made by the employer to the Tribunal, has been reiterated in Sankar Chakrabarty's case after observing that on the question as to the stage as to when leave to adduce further evidence is to be sought for, the decision of this Court in Cooper Engineering Ltd.
has not overruled the decision of this Court in Delhi Cloth Mill's case. There is no dispute in the present case that before the closure of the proceedings before the Tribunal, payer was made by the employer to lead evidence in support of the impugned order of dismissal. Hence, denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified."
9.2. In case of Neeta Kaplish vs. Presiding Officer, Labour Court and Another; reported in (1991) 1 SCC 517, the appellant was dismissed from service after the domestic inquiry. The Labour Court came to a conclusion that inquiry conducted by the management was not fair and proper and therefore, called upon the management to produce the evidence on merit. The management, however, informed the Labour Court that it wanted to rely on the evidence already Page 12 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 recorded during the inquiry proceedings and therefore, it did not produce any fresh evidence before the Labour Court. In such a view of the matter, the Apex Court held that when the inquiry has been held and found to be defective, the Labour Court/ Tribunal can call upon the Management or the employer to justify the action taken against the workman 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 ground at any subsequent stage and if the opportunity availed of and the evidence is adduced by the management, the validity of action taken by it has to be scrutinized and adjudicated upon on the basis of such fresh evidence.
10.3. The appellant questioned the domestic inquiry on number of grounds. The Labour Court found that the inquiry was not fair nor properly conducted. After recording this finding, the Labour Court called upon the management to lead the evidence on merit which it did not do. The Apex Court held thus: -
"26. Learned counsel for the appellant 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 Page 13 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 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 that 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 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."
10.4. In case of Karnataka State Road Transport Corporation vs. Lakshmidevamma (Smt) and Another; reported in (2001) 5 SCC 433, the issue was in relation to the right of employer to lead additional evidence in the proceedings under Section 10 or 33(2)(b) against termination Page 14 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 of service. The Court held that such right must be exercised when he files his statement of claim or makes an application for permission to take certain action or for approval of the action taken by him. The Court held that it is just and fair and does not conflict with the decision in Rajendra Jha case (1984 Supp SCC 520). The Court also held that application for permission made after domestic inquiry was found to be vitiated and was rightly rejected. The Court further held that this position would not derogate from the powers of the Court or the Industrial Tribunal to require or direct the parties to lead additional evidence at any stage before closure of proceedings if on facts and circumstances deemed just and necessary in the interest of justice. The Court held that the right of employer to lead evidence before the Labour Court/ Industrial Tribunal in justification of the impugned action is not a statutory right, but, a procedure as laid down by the Supreme Court.
"15. The question again arose in the case of Shambu Nath Goyals case (supra) as to the propriety of waiting till the preliminary issue was decided to give an opportunity to the management to adduce evidence, because after the decision in the preliminary issue on the validity of the domestic enquiry, either way, there was nothing much left to be decided thereafter. Therefore, in Shambu Nath Goyals case this Court once again considered the said question in a different perspective. In this judgment, the Court after discussing the earlier cases including that of Page 15 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 Shankar Chakravarti vs. Britannia Biscuit Co. Ltd. & Anr. (1979 (3) SCR 1165), which was a judgment of this Court subsequent to that of Cooper Engineering (supra), the following principles were laid down:
"We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage in the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under section 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workmans contention regarding the defeat in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay. But when the question arises in a reference under s.10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defeat in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead Page 16 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 to wrecking the morale of the workman and compel him to surrender which he may not otherwise do."
16. While considering the decision in Shambu Nath Goyals case, we should bear in mind that the judgment of Vardarajan,J. therein does not refer to the case of Cooper Engineering (supra). However, the concurring judgment of D.A.Desai,J. specifically considers this case. By the judgment in Goyals case the management was given the right to adduce evidence to justify its domestic enquiry only if it had reserved its right to do so in the application made by it under section 33 of the Industrial Disputes Act, 1947 or in the objection that the management had to file to the reference made under section 10 of the Act, meaning thereby the management had to exercise its right of leading fresh evidence at the first available opportunity and not at any time thereafter during the proceedings before the Tribunal/Labour Court.
17. Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this Court in Shambu Nath Goyals case need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic enquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambu Nath Goyals case is just and fair.
19. For the reasons stated above, we are of the opinion that the law laid down by this Court in the case of Shambu Nath Goyal vs. Bank of Baroda & Others (1984(1) SCR 85) is the correct law on the Page 17 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 point."
10.5. In case of M.L.Singla vs. Punjab National Bank; reported in 2018 SCC OnLine SC 1585, the appellant was directed against the final judgment and order passed by the High Court of Punjab and Haryana, where it allowed the Writ Petition filed by the respondent Bank and quashed and set aside the award passed by the Presiding Officer, Central Government, Industrial Tribunal-cum-Labour Court. The Court discussed at length the decision of Shankar Chakravarti vs. Britannia Biscuit Co. Ltd.(1979)3 SCC 371, where the question addressed was that when the domestic inquiry is held illegal and improper by the Labour Court, whether the Labour Court is duty bound to afford an opportunity to the employer to lead evidence to prove the charge against the workman on merits before the Labour Court. The Apex Court while answering this question held that it is for the employer to ask for such opportunity to lead evidence to prove the charge of misconduct and once such a prayer is made, the same cannot be denied to the employer.
"45. This Court while answering the aforesaid question held that it is for the employer to ask for such opportunity to lead evidence to prove the charge of misconduct and once such prayer is made in any form, i.e., orally or by application or in the pleading, the same cannot be denied to the employer. It has to be granted to enable him to prove the misconduct. This Page 18 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 Court further held that no duty is cast upon the Court to offer such opportunity to the employer suo motu, if he does not ask for it. In other words, he has to ask for from the Court by any of the three modes mentioned above."
10.6. In case of Pidilite Industries Ltd. vs. Hitesh Jivrambhai Panchal and Another; reported in 2016 SCC OnLine Guj 336, challenge is made to the award passed by the Labour Court, where the Court held thus: -
"4. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that the workman was charge sheeted on 10.02.1997 and was dismissed from service vide order dated 27.06.1998. The Labour Court has set aside the said dismissal vide order dated 27.04.2015. Reinstatement is ordered with 50% back wages. The foundation of setting aside the dismissal order is that the charge against the workman was not proved. This Court finds that Labour Court has committed error while coming to this conclusion, because this question was already gone into by the Labour Court on the specific plea raised by the workman and an order to that effect was also passed below Exh.33 on 06.07.2013 holding that the inquiry was legal and proper. The Labour Court fell in error at the time of recording the final award that the charge against the workman was not proved, on the face of earlier order dated 06.07.2013 which attained finality. Even otherwise, it was not open to the Labour Court to straight away set aside the dismissal order since the employer had already asked for permission to lead evidence and to prove the charge before the Labour Court, in the event the Labour Court comes to the conclusion that inquiry was not legal and proper. The Labour Court has not done any such exercise. Had the question of legality of the inquiry been not gone into by the Labour Court on earlier occasion, the matter could have been remanded to the Labour Court for fresh consideration, however Page 19 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 that is not warranted since that question was already gone into by the Labour Court and the same was decided against the workman and it had attained finality. So far, the decision relied by learned advocate for the workman is concerned, not only it will not help the workman, it would support the case of the employer keeping in view the observations made in para:22 of the said decision. Considering the totality this Court finds that impugned award is unsustainable in the eyes of law and the same needs to be quashed and set aside."
10.7. The above decision had been challenged before the Division Bench of this Court in Letters Patent Appeal No. 101 of 2016 arisen from Special Civil Application No. 15845 of 2015, where there was a broad consensus between the parties to set aside the dismissal order, order of reinstatement and to remit the matter to the Labour Court from the stage of permitting the employer to lead the evidence before the Labour Court to prove the charges and misconduct against the employer.
10.8. In case of Torrent Power Ltd. and Another vs. Chelabhai Nathabhai Luhar and Others; reported in 2017 SCC OnLine Guj 2472, the Court held thus: -
"10. The principle of law which emerges from the above cited judicial pronouncements can be summarized thus:
10.1. Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of discharge must be considered to be immune from challenge, for the Page 20 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 reason that discharging the office of trust and confidence requires absolute integrity, and in such a case of loss of confidence, reinstatement cannot be directed.
10.2. The test to find out as to whether there was bona fide loss of confidence in the employee is thus:
(i) Whether the workman is holding the position of trust and confidence; (ii) by abusing such position, he commits 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.
10.3 Loss of confidence cannot be subjective but must rest on objective tangible facts leading to a definite apprehension in the mind of the management, regarding trustworthiness or reliability of the employee. An employer who believes or suspects that his employee, particularly one holding a position of confidence, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge. But such belief or suspicion of the employer should not be a mere whim or fancy. It should be bona fide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and' prudence.
10.4. Expressing dissatisfaction with the overall result of the performance of duties by employee does not necessarily imply misconduct on the part of the employee and thus it would be permissible to dispense with the service of the employee in private employment subject to the terms and conditions by expressing the dissatisfaction with the performance of the private employee. The opinion formed by the employer about the suitability of his employee, for the job assigned to Page 21 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 him even though erroneous, if bona fide, is final and not subject to review by the industrial adjudication.
10.5 Thus, if the facts constituting misconduct resulting in loss of confidence form the record of the employer, the employer in its discretion may invoke the power to discharge simpliciter for loss of confidence while dispensing with inquiry into the conduct of the workman."
10.9. In case of Mulin Sharma vs. State of Assam and Others; reported in (2016) 14 SCC 208, the Court had directed the reinstatement without backwages. It was reiterated that payment of backwages is discretionary power which must be exercised by the Court keeping in view the facts in their entirety and no straitjacket formula can be evolved nor rule of universal application can be laid down in such cases. Reinstatement does not necessarily result in payment of backwages which is independent of reinstatement. In absence of any evidence to prove that appellant was unemployed during the period in question, the backwages cannot be granted since he had not worked for that period.
11. Reverting to the facts of the instant case, the applicant herein, in the written statement dated 18.12.2007 filed before the Labour Court, sought opportunity to lead evidence to prove the charges of misconduct before the Court, if it arrives at a finding that inquiry is illegal or perverse or is in Page 22 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 contravention of the principles of natural justice, therefore even, when the termination has been held illegal, the applicant - Company has urged that it ought to have granted opportunity to lead evidence to prove the charges before the Labour Court.
11.1. It would be apt to consider the approach of the Labour Court in a matter where the opponent no.1 was charged for disobedience and misbehaviour with his superior while on duty on 15.06.1999. This Court noticed that the workman when was proceeded against in the domestic inquiry, there were no specific accusations in relation to the incidents dated 09.06.1999 and 10.06.1999. In the charge / memorandum of charges, the oral evidence was found at variance by the Labour Court. The Labour Court also justly gave a right conclusion that the charges de hors the notice were sought to be proved against the petitioner by oral evidence. The findings during the inquiry were held by the Court as perverse and it further held that the case of dismissal from service against the opponent no.1 was not made out. The Labour Court also held that the witness Mr. P.A.Joshi and Mr. Chaudhari corroborated the incident dated 15.06.1999. It questioned seriously the conduct of the opponent no.1 on the ground of insulting his superior and it Page 23 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 chose not to direct the reinstatement because of the conduct. 11.2. In wake of such findings of the Labour Court, the termination when has been held illegal on the ground that the findings in the inquiry are perverse and are in contravention of the principle of natural justice, the question is as to whether the company ought to have been given the opportunity to lead additional evidence to prove the charges before the Labour Court. It is to be noted that at no point of time the applicant herein has questioned the action on the part of the Labour Court for not availing the opportunity of adducing evidence. The applicant has become aggrieved only because this Court has directed reinstatement with backwages, whereas the Labour Court had granted Rs. 50,000/- by way of compensation in lieu of reinstatement and backwages.
12. There is no cross petition of SCA 3760 of 2012 which has been challenged by the opponent. Therefore, to urge this Court to allow the opportunity after nearly a decade as the date of award of the Labour Court is of 18.02.2011, is not found justifiable. At the same time, this Court cannot be oblivious of the fact that there cannot be automatic reinstatement and the complete backwages merely because Page 24 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 the Court held the findings of the inquiry perverse.
13. This Court noticed that the Supreme Court as mentioned herein above in Mulin Sharma's (supra) case has held that backwages is not necessarily to be awarded for the same being a discretionary relief which can be exercised by the Court keeping in view the facts in its entirety and no straitjacket formula can be applied. The applicant has also produced the evidence before the Labour Court that the opponent no.1 has employed with the partnership firm called 'Gohel Traders' and he was looking after the marketing of Nisaar Brand of Bindi. His monthly income was approximately 24,000/- per month.
14. As mentioned herein above, in absence of any challenge to the lump-sum payment of compensation of Rs. 50,000/-, there does not arise any question of remanding the matter back to the Labour Court for adducement of evidence or for the purpose of invoking the powers of employer of proving the charges of departmental inquiry. There has been a sufficient opportunity given to the employer, who after accepting the amount of compensation, is questioning this only because of the payment of consequential benefit of backwages.
15. This Court is not inclined to take into consideration the Page 25 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021 C/SCA/3760/2012 IA JUDGMENT DATED: 24/06/2021 plea of permitting additional evidence for proving the charges levelled against the opponent no.1. Undoubtedly, as mentioned in case of Shambu Nath Goyal (supra), the evidence had been asked for in the written statement by the applicant. In a peculiar circumstance as mentioned herein above, such a request is not to be acceded to. With the evidence of his association with the Gohel Traders having already come on record, even that does not require any further opportunity.
16. Resultantly, the present application being Misc. Civil Application No. 01 of 2019 for recall is allowed. The main petition being Special Civil Application No. 3760 of 2012 is dismissed with no order as to costs.
(SONIA GOKANI, J) Bhoomi Page 26 of 26 Downloaded on : Wed Sep 01 11:14:42 IST 2021