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8. It would be better to quote the reasoning of the Labour Court which is contained in relevant portion of paragraph 15 of its award dated October 22, 1982, as under: -

" 15.....The orders of termination do not state that first parties are punished for any specified misconduct. The unsatisfactory work and conduct does, not show that the employees were held guilty of certain misconducts and were punished by way of disciplinary action. Unsatisfactory work and conduct mean that work and conduct was not to the satisfaction of the employer. It does not mean a misconduct as defined under the rules or orders. Thus, the employer by his order declared that employees are not punished for any misconduct. The employer instead of taking disciplinary action for any misconduct adopted the course of simple termination. In such circumstances the employer himself cannot be allowed to say that the termination is by way of disciplinary action for a specified misconduct. The employer cannot be allowed to say that it was a colourable exercise of powers on his part. The employer said by termination order that he does not want to take disciplinary action, The same person, the employer, cannot be allowed to say that it is really a punishment and there was colourable exercise of powers on his part. Thus, the termination of services was not by way of disciplinary action and the termination of services amounted to retrenchment."

The same reasoning is reiterated by the Labour Court in paragraph 22 of its award under:-

"Thus the contention of second party that the termination of services of the three employees can be treated as disciplinary action cannot be accepted. An employer himself cannot say that simple termination of services was ordered in the termination order while it was actually punishment for misconduct. The employee can challenge an order, stating that it is really a punishment for misconduct. The employer who wants to take advantage of stating that it is a simple termination cannot be allowed to take advantage of stating it disciplinary action also. Employer cannot prove misconduct as reasons for termination to avoid the effects of saying unsatisfactory work as reason, which in itself does not mean misconduct."

30. In our considered view the decisions of the Division Benches in the cases of Sunil Kumar Azmi and others (supra) and Factory Manager, Central India Machinery MFG., Co. Ltd., Gwalior and Another (supra) are distinguishable. In the aforesaid two Division Bench cases, the action of termination taken by the employer was based on Standing Order 11 of the Industrial Employment (Standing Orders) Rules, 1963, framed under the M.P. Industrial Employment (Standing Orders) Act, 1961. Under the Standing Order 11, even a permanent employee could be terminated on one month's notice or pay in lieu thereof and the only requirement on the part of the employer was to record in writing the reasons for termination and communicate the same to the employee. In the case of the Sunil Kumar Azmi and Others (supra), under Standing Order 11, the services of the employee were terminated simpliciter for unsatisfactory work resulting in loss of confidence. In such a situation it was held by the Division Bench that such termination of services did not amount to 'retrenchment'. This statement of law may require reconsideration in view of the larger meaning assigned by the Supreme Court to the word 'retrenchment' to include 'termination for any reason whatsoever', including one for unsatisfactory work and loss of confidence, but excluding action taken by way of punishment. In the later decision of the Division Bench in the case of Factory Manager, Central India Machinery MFG, Co. Ltd., Gwalior and Another (supra) the Division Bench rightly noticed in paragraph 6 of the judgment the decisions of the Supreme Court on the subject for holding that action of termination under Standing Order 11 for inefficient or unsatisfactory work would amount to retrenchment within the meaning of Section 2(oo) of the I.D. Act. The ratio of the above two Division Bench decisions turns on the nature of the termination of the employees based on Standing Order 11/in those cases. Compared to them, the Division Bench decision in the case of M.P. Electricity Board, Jabalpur (supra) recognizes the right of the employer to prove misconduct even where it has taken action of simple termination under the Standing Order applicable to the industry but takes a plea before the Labour Court that the foundation of the order was misconduct and motive was to punish him.

31. From the ratio deduced by us from the above referred three Division Bench decisions of this Court a distinction is noticeable between the cases on the one hand where the order of simple termination is based on unsatisfactory or inefficient work and conduct or loss of confidence and on the other the cases where although the order of termination is innocuous and is stated to be for unsatisfactory work and conduct, but in fact the employer pleads that it was on the basis of misconduct for which he seeks opportunity to prove it before the Labour Court. The Division Bench in the case of M.P.E.B., Jabalpur (supra) therefore, correctly stated the legal position that in the latter case where the employer takes a plea that the foundation of the order of termination simpliciter was misconduct, he cannot be denied opportunity to prove the same in the Labour Court.