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9. I have carefully gone through the impugned judgment and order dated January 29, 1997 passed by the Labour Court perused the evidence produced on record and documents annexed to the writ petition. It is true that the Labour Court after remand has not framed specific issue based in the light of the observation made by this Court in the order of remand dated July 10, 1997. The relevant observations read thus:

"4. Shri K.G. Shenoy in his deposition has stated that the performance of the workman was not upto the mark during probation period still we gave some time for improvement and probation of the workman was extended. In paragraph 5 of his deposition Mr. Shenoy has deposed that there are appraisal reports for the period from August 15, 1983 to November 14, 1983 at pages 21 to 24 to Exhibit C-3. These appraisal reports show unsatisfactory performance of the workman. According to the petitioner company services of the workman were terminated because of loss of confidence and unsatisfactory work. The evidence was also led by the employer by producing Mr. Shenoy and Exhibit C-3. However, I find that Labour Court has not adverted to the evidence led by the petitioner management on the point of loss of confidence and unsatisfactory work. In Kamal Kishore Lakshman's case (supra) the Apex Court has held that termination of service on account of loss of confidence amounts to stigma and the management can justify termination in the course of adjudication. It was, therefore, incumbent upon the Labour Court to examine the evidence led by the petitioner on the ground of loss of confidence and unsatisfactory work and then give a positive finding whether the termination was justified or not. The Labour Court fails to exercise its jurisdiction in accordance with law by not considering the evidence led by the petitioner on the point of loss of confidence justifying workman's termination and, therefore, the order dated October 26, 1994 cannot be sustained and matter needs to be sent back to the second Labour Court for fresh decision of the matter in accordance with law."

10. Pursuant to the observations made in the aforesaid paragraphs it would have been more appropriate for the Labour Court to frame specific issue and examine the evidence led by the petitioner on the ground of loss of confidence and unsatisfactory performance and then record the positive finding whether the termination was justified or not. Since that was not done I went through the award, evidence and other material annexed to the writ petition carefully to satisfy whether the Labour Court has examined the evidence in the light of the aforesaid observations of this Court. After going through the entire material placed on record, I am satisfied that the finding of the Labour Court on the point of loss of confidence is not based on the material placed on record including the evidence led by the respondent-company. However, the finding of the Labour Court on the point of unsatisfactory performance of the petitioner stands justified on the basis of the material placed on record. I would like to record my reasons for reaching the aforesaid conclusion in the later part of the judgment.

11. The Labour Court appears to have placed heavy reliance upon the following documents while recording its finding that the services of the petitioner were terminated on the ground of loss of confidence and unsatisfactory work, confidential report dated December 1, 1993 written by Mr. Kotwal, President of Cement Division where the petitioner was working as his secretary at the relevant time; appraisal report for the period between August 15, 1983 to November 14, 1983 which was signed by Mr. Kotwal; performance appraisal for the period between May 15, 1983 to August 15, 1983; statement showing number of days the petitioner worked; leave enjoyed by her during the probation period; written note of Shri Gupta regarding confidential performance appraisal and three vouchers dated December 3, 1983 pertaining to the dues offered to the petitioner. All the aforesaid documents have been proved by Shri Govind Shenoy, the witness examined by the respondent-company. Referring to these documents, Mr. Shenoy has stated that after completion of the period of six months, the period of probation was extended by three months. After expiry of three months period, the services of the petitioner were not found upto the mark and, therefore, it was proposed to be terminated. Mr. Shenoy has specifically stated in his evidence that there was no improvement in her performance and, therefore, her services were finally terminated on December 1, 1983. Unfortunately, neither the petitioner nor the respondents have placed the confidential report and appraisal report on record for my perusal. The Labour Court though appeared to have gone through the I entire material placed on record including the confidential report and appraisal report has failed to make specific reference to the reports and recorded its finding on the point of loss of confidence. I did not find any material placed on record or the oral evidence, on the basis of which it could be said that the petitioner failed to gain confidence of her superior or there was loss of confidence, though material is sufficient to hold that the performance of the petitioner was unsatisfactory. Similarly I did not find any discussion in the award as to what made the learned Presiding Officer to record his finding that the ground of loss of confidence stands proved against the petitioner- The only ground which I found in the award recorded by the learned Presiding Officer for holding that the petitioner did not gain confidence of the management, was that she was holding the post of secretary, the post of confidence and trust in the company. Merely because the petitioner was holding a post of Secretary which is the post of confidence and trust and that her performance was unsatisfactory would not mean the case of loss of confidence stands proved against the petitioner. In my opinion it would not be proper to hold termination valid on the ground of loss of confidence. There are no allegations of misconduct or breach of trust against the petitioner. The fact that the employer was not fully satisfied with the overall performance of the duties by a workman, does not necessarily imply that the employee has failed to gain confidence or in other words unsatisfactory performance would lead to loss of confidence in the workman. In my opinion holding of a position of trust and confidence, alone is not sufficient to infer loss of confidence unless there are allegations of such nature whereby it could be said that the workman has abused his position and committed acts which resulted in forfeiting the same and to continue such workman in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline and the security of the establishment. Unless these aspects are present it would not be proper to record a positive finding on the point of loss of confidence. In the present case, the respondent-management has not made any such allegation against the petitioner except that her performance was unsatisfactory. However, the material placed and the evidence of Mr. Shenoy, as expressed earlier, is sufficient to hold that the petitioner's performance was unsatisfactory. Mr. Shenoy, has specifically stated in his evidence that her performance was unsatisfactory, which resulted in extension of her probation by three months. During this period also, he states, that her performance was not upto the mark and, therefore, it was proposed to terminate her services. Mr. Shenoy, after making reference to the documents placed on record has, reiterated that there was no improvement in her performance. It is very pertinent to note that, in oral evidence Mr. Shenoy, does not state, for any reason that there was a loss of confidence in the petitioner. In the result, I set aside the findings recorded by the Labour Court holding termination valid on the ground of loss of confidence. The Labour Court ought to have borne in mind the specific directions given by this Court in the order of remand dated July 10, 1997 that it had not adverted to the evidence led by the petitioner-management on the point of loss of confidence and unsatisfactory work. The emphasis was on the point of loss of confidence. The appraisal reports, confidential reports, notes of Shri Gupta and other material, in my view, is sufficient to terminate the services of the petitioner on the ground of unsatisfactory performance. As a matter of fact LODHA, J., in the order of remand dated July 10, 1997 has also recorded that the appraisal reports show unsatisfactory performance of the petitioner. Specific reference is also made in the order to the evidence of Mr. K.G. Shenoy, however, it was found in the light of the judgment of the Apex Court in the case of Kamal Kishore Lakshman, (supra) that the termination of services of the workman on the ground of loss of confidence amounts to stigma and the management should justify termination in the course of adjudication. Specific reference was made to the aforesaid judgment of the Apex Court requiring the Labour Court to weigh the evidence and record its finding on the ground of loss of confidence. In view thereof I have no hesitation in holding the termination bad on the ground of loss of confidence and just, valid and reasonable on the ground of unsatisfactory performance.

13. It is thus clear that if there has been no appropriate domestic enquiry or no enquiry at all before the disciplinary action is taken, it is open to the employer to ask for such opportunity in the course of adjudication. In other words the order could be justified even in the course of adjudication before the appropriate Tribunal under the Industrial Disputes Act even though no enquiry has been undertaken earlier. In the present writ petition, there is no dispute that such an opportunity was not offered to justify the impugned action. The parties have led evidence, cross examined the witnesses, produced documents etc. All these support the contention of Mr. Pai, learned counsel for the respondent that during the course of adjudication before Labour Court the parties got sufficient opportunity. In view of this, I find no substance in the submission of learned counsel for the petitioner that the respondent-company ought to have conducted enquiry against the petitioner before terminating her services on the ground of unsatisfactory performance. Even if it is assumed that termination of probationer on the ground of unsatisfactory performance is also stigmatic the compliance of enquiry stood complied with during the course of adjudication proceedings before the Industrial Court. This Court in West Coast Paper Mills Employees Union, case (supra) has followed the same principle laid down by the Apex Court in the case of Kamal Kishore Lakshman (supra) and in Hotel Horizon Pvt. Ltd. case (supra). It is thus clear that in case the employer adduce cogent material before the Labour Court to justify its action of discharge simpliciter on the ground of unsatisfactory performance is proved before the Labour Court, there is no question of compliance of Section 25-F of the Industrial Disputes Act. This Court has gone a step further and has observed in Hotel Horizon Pvt. Ltd. (supra) that the order of the discharge simpliciter cannot be said to be illegal or improper because there was no charge-sheet or there was no enquiry held before the order of, discharge simpliciter was passed or there was no compliance with Section 25-F of the I.D. Act. The law requires the employer to justify the action of discharge simpliciter either on the ground of confidence or unsatisfactory performance before the adjudicating authority. In the present case, I have already held that the respondent-company has proved before the Labour Court the ground of unsatisfactory performance for the termination of the services of the petitioner. Mr. Varghese, learned counsel for the petitioner placed reliance upon the judgments of Supreme Court in case of Dipti Prakash Banerjee, (supra) and V.P. Ahuja (supra). In V.P. Ahuja 's case (supra) the Apex Court in Paragraphs 7 and 8 held thus at pp. 1100 & 1101 of 2000-I-LLJ-1099: